E-discovery—The Courts are Evolving, are You?
Another dynamic of efficient gathering of pertinent information is the ability to present the best legal position within the allocated response time. When you cannot find information within a "reasonable" time frame, unpleasant legal actions will likely follow. In a recent legal action, a defendant who had difficulty in meeting previous production request deadlines was given a firm date for a new production request. The court determined that an appropriate penalty for a late response was $50,000 per day. After 98 days beyond the due date, the court, at its discretion, reduced the fine to $700,000.1 Under the new rules, the potential court action could include allowing the opposition access to information assets. Instead of approaching these difficult issues as a necessary expense, there is a solution path that provides operational efficiencies for a more agile organization. An enormous and ever-growing group of services, hardware and software companies have targeted organizations seeking assistance in developing plans and solutions for e-discovery specific issues. Some of these companies are exclusively aimed at responding to e-discovery requests, while others are based on technologies that support a broad array of business requirements. Some of these services are targeted at specific issues, such as email management, whereas others are targeted at enterprise issues and provide a foundation to support every facet of your business. Many of these e-discovery solutions also offer a desirable return on investment while providing a platform for specific e-discovery requirements.
Today's storage solutions offer high-performance and low-cost options for storing an entire enterprise's electronic information on a single storage platform. An added benefit of a centralized storage environment is that it is less difficult to implement a continuity of operations plan (COOP) for backup and disaster recovery. Generally, these systems offer exceptional security, a low cost per unit of data and high performance. Some of the more sophisticated devices offer self healing, internal fault tolerance, read-only access and advanced object management and archiving capabilities. Since most of these systems can be accessed by external applications much easier than a distributed system, they offer exceptional integration options for information lifecycle management.
The ECM Solution
Enterprise content management (ECM) solutions offer a number of highly complementary technologies to assist in resolving e-discovery issues. The core components of some ECM products have been in use for more than 20 years and are currently supporting hundreds of thousands of users in enterprise organizations. According to (AIIM)'s definition:
Enterprise content management is the technologies, tools and methods used to capture, manage, store, preserve and deliver content across an enterprise. At the most basic level, ECM tools and strategies allow the management of an organization's unstructured information, wherever that information exists.2
Historically, ECM systems have delivered quick returns on investment by saving organizations time in searching and retrieving information, saving electronic storage space through a single instance store, saving time in processing and collaborating on document management and saving time through effective document management and retention practices. All of these efficiencies are especially applicable to solving e-discovery issues.
Most ECM solutions offer substantial document management capabilities. Documents are generally captured at their point of creation and generally gather an extended set of properties that will assist in the accessibility of that content into the future. The content is stored into a secure repository and the properties are mapped into a database. Once the content is secured in the repository, it is typically indexed for content searching. Saved content can be easily retrieved using a variety of search tools, and when it is reused, business rules filter proper use of that content and each access can be audited to determine specific use. Workflow processing can automate the use processing to achieve operational efficiencies. This may be especially useful in e-discovery to assist in the evaluation of discovery production.
Look for ECM products that are quick to deploy and easy to configure to meet specific business needs. Those products have all their functionality contained within the same code base. The products that have the least custom integration may offer a lower total cost of ownership. Some ECM companies have extended their capabilities through acquisition rather than organic growth and may require a greater level of effort and cost to deploy.
Some less common features in ECM suites offer significant benefit to specific rule interpretations. Since discovery does not necessarily specify the difference between documents and records, what is generally perceived as records management functionality should also be available to document management. A limited number of ECM suites manage all content within the same parameters as defined by the business rules. Therefore, both document and record content will be retained for a specified period of time. During that time, activity and use of that content will be audited and will also be subject to legal holds. Content that is subject to a legal hold is restricted by the system for alteration or disposition (a nice point to make in court). When an item is disposed, a record is created, recording the basis for the disposition including who, why, under what authority and when that content was disposed. This is precisely what the courts are willing to accept and also demonstrates good business practice.
Do ECM suites provide a complete solution for e-discovery? Absolutely not! However, ECM suites provide a cost-effective framework for best practices. ECM suites can provide a return on investment and make your organization more agile and competitive, in addition to providing e-discovery compliance. An effective ECM solution, combined with insightful management policy and practices, may demonstrate a proactive policy which can help you stay out of court. ECM systems offer you a way to evolve in concert with the courts.
TOWER Software, a leading enterprise content management (ECM) provider to government and regulated industries, delivers award-winning information management solutions. Our product, TRIM Context 6, enables organizations to have compliant, secure and accurate information available to make confident business decisions. TRIM Context 6 won AIIM E-DOC Magazine 2006 Best of Show award for ECM Suites.
1. http://www.prestongates.com/images/pubs/OrderReSanctions.pdf
2. http://www.aiim.org/about-ecm.asp