Are you still using a cobbled-together system of spreadsheets, outdated legacy software and expensive outside counsel to deal with ediscovery? Is your current approach costing you an exorbitant amount and still not delivering impressive results? Or, worse, do you not really understand how your system works at all? You probably know that a more consistent, well-understood, clearly delineated and defined process would help you achieve better outcomes when litigation is threatened or initiated. But how do you get from here to there? The same way you eat an elephant: one bite at a time.
Don’t panic or get overwhelmed. We’ll help you break this elephant-sized problem down into reasonable chunks, starting with the outcome you’re trying to achieve, explaining how in-house ediscovery can get you better results with lower expenditures and laying out a step-by-step process with detailed considerations.
Categorize the Considerations
Your initial step should be to evaluate the core concerns involved with the prospect of bringing ediscovery in house.
Defensibility is the keystone for ediscovery. As you assess your current ediscovery system, remember that for any case, you might have to stand up in court and explain everything you did. When did you first learn of possible litigation and when did you implement a legal hold in response? Who did you distribute that hold notice to? How do you know that those custodians were aware of their preservation obligations? How did you identify the electronically stored information (ESI) you needed to preserve and how did you collect that data? As counsel, you must be able to explain and justify each step in your discovery pipeline. Nor is discovery a linear process that marches from point A to point B; rather, discovery is iterative, where the more you learn about a case or a defense, the more you refine your results.
Early case assessment (ECA) is another primary touchpoint. Most cases settle during discovery, so most of the time your goal should be to reach a reasonable outcome as quickly as possible. You need to be able to quickly evaluate a charge and decide how much time and effort it will be worth, which requires having a solid, up-to-date grasp of the data your organization generates and where that data lives.
Cost control is a business necessity. In ediscovery, it’s tempting to think of cost control one-dimensionally: how much are we paying to identify, preserve, collect, process, review, analyze and produce information? This oversimplification is a mistake. Yes, controlling ediscovery costs is vital, but the costs go well beyond the obvious budget line items. If your sloppy ediscovery process causes you to pay too much to settle every case that comes along because you can’t assess cases quickly and accurately, you’re wasting money. If you can’t defend your legal hold process and you’re sanctioned for spoliating evidence, that one error could offset anything you “saved” by using an old, slipshod system. If you overcorrect the other direction and avoid spoliation by never deleting data, you’re paying by the gigabyte to host, process and review reams of irrelevant information — and you’ll repeat that mistake on each case you handle. The corollary to controlling costs is cost predictability. With an internal, known process it is much simpler to project what your ediscovery expenses will be. Imagine the benefits of a consistent, defensible, predictable and secure system fully under company control, able to adapt in agile fashion to any developments in the business or legal landscape. Let’s look at how today’s in-house ediscovery technology makes all this possible.