The High Cost of the Litigation Process
Information Management: The First Step in the Right Direction
According to a recent survey conducted by the law firm Fulbright and Jaworski, 94% of corporate counsel respondents expect legal disputes to increase or remain the same this coming year. With stricter regulation across the US and UK, particularly in the areas of anti-bribery enforcement and healthcare, discovery costs will continue to be a major concern for corporate counsel. While there may be little that organizations can do to control the amount of litigation they receive in any given year, these organizations can control how they prepare to respond to these events. A proactive information management strategy combined with the right tools to automate and simplify the discovery process can have a significant impact on how a matter is strategically evaluated and ultimately resolved.
Three Steps in the Proactive Discovery Process
1. Legal hold: An organization must make a good faith and reasonable effort to preserve information that may be relevant to a legal or regulatory matter once litigation is reasonably anticipated. Unstructured data and data dispersed across multiple locations make it extremely difficult to determine what is relevant. In addition, securing relevant information from normal destruction practices can test an organization’s ability to identify which systems and processes may be affected. An archiving solution, implemented in conjunction with a proactive approach to information management, may help avoid any missteps in this process by providing the ability to identify relevant information much sooner.
Using an archiving tool, information across the organization is stored in one centralized location. This information can then be accessed and searched by a designated user with the appropriate permissions. This approach provides greater consistency in the discovery process and potentially relieves the burden and distraction to individual custodians of having to go out and search their environments. In addition, archived information is essentially pre-collected and pre-indexed, thereby reducing the time and cost related to early case assessments.
Once the relevant information has been identified, it can then be preserved in the archive until such time as the matter is concluded or the hold is otherwise lifted. This ability to preserve information within the archive alleviates the need to create additional copies and reduces the risk that the information will end up on a hard drive in a storage facility, never to be expired. Relying on an archive to maintain and preserve relevant information also means that an organization can move away from the indefinite holding of backup tapes. Rather, once a hold has been lifted within the archive, the information will be expired pursuant to the automated policies already established.
2. Finding information outside the archive: Even the best information management strategies will not be able to capture everything within an organization’s environment. In best-case scenarios, organizations will be able to control and manage 80% of their information through information management policies and archiving. But this still leaves 20% of information that may be outside of the organization’s immediate control, for example, on user’s laptops or desktops. For discovery events that require this information, it is important to have an integrated solution that allows for the search and indexing of this data so that it can ultimately be added to the archive for preservation and further analysis. Using such a tool ensures that the organization has visibility into all potentially relevant data sources across its environment and can bring outlying sources within corporate control in the archive.
3. Review and production: The right archiving and discovery solution can also provide an organization the ability to review information internally, relieving the need to rely so much on third parties. Given that the bulk of e-discovery costs can be attributed to the review process, the ability to proactively manage some of this workflow in-house can result in tangible cost savings. For organizations that are not staffed to do review in-house, an archiving and review tool can still provide substantial benefit. In these cases, an in-house legal or IT team can simply search the archive for relevant information using specific keywords, date ranges or custodians. This allows much larger data sets to be culled down to more manageable volumes and reduces the amount of information that is ultimately exported for review by outside counsel. Organizations not routinely involved in litigation can take similar advantage of search and review capability in order to avoid costly identification, processing and review costs. The right tool will also provide an auditable chain of custody of the key activities performed on the information.
In addition to enabling a proactive response to formal information requests, an archiving and discovery solution has several collateral uses that often provide a quick return on investment. For example, in many organizations the archiving tool is used to improve the internal audit investigation process. As with formal information requests, once a claim or issue arises, information can quickly and easily be pinpointed and reviewed to determine the appropriate course of action. Likewise, internal human resources issues can be researched and analyzed without extensive disruption.
While there are many positive developments underway to evaluate and potentially improve the current litigation system, this kind of change comes slowly. While options are being considered, organizations have tools available to them now that can help alleviate the cost and inefficiencies associated with the discovery process. The initial investment in an information management process will enable an organization to reduce the amount of information it is storing on its systems, comply with its legal obligations to preserve data, meet its discovery deadlines and better control its spend on outside vendors.
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1 Litigation Cost Survey of Major Companies, Searle Center on Law, Regulation, and Economic Growth, 2010 Civil Litigation Conference, May 10-11, 2010.