Are you still using a cobbled-together system of spreadsheets, outdated legacy software and expensive outside counsel to deal with ediscovery?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.
STEP 1 – 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.
STEP 2 – Develop A Benefits Checklist
Moving part or all of ediscovery in house enhances defensibility by giving you control over your data and your process. A consistent process is the key to defensibility; if you can’t explain why you did what you did, the court may view that capriciousness as negligence or even intentional misconduct. When you move your ediscovery process in house, you can guarantee that it is consistent, predictable, repeatable and transparent. Nor will you have to deal with potential law firm conflicts or inconsistencies in outside counsel’s process. Enhancing control over your data by keeping it in house reduces other risks too. First, it improves your data security, as you limit the amount of data you have to share with outside counsel or outside systems. Additionally, it improves the quality of your results, since you can have the people who are most knowledgeable about your data — your own employees — identify what should be preserved, collected and analyzed, rather than relying on an external vendor or firm that doesn’t live and breathe the intricacies of your business. But it’s the potential cost reduction and predictability that drives most companies to adopt in-house ediscovery. Today’s specialized software uses cutting-edge technology to make in-house ediscovery both possible and affordable. Bringing part or all of your ediscovery process in house can save you money on each individual matter by reducing the amount of data that must be processed. Those savings also accumulate as you use your internal system and collect institutional knowledge about your data. With each matter you run through your in-house process, your cost per case can diminish. Costs are also more transparent and controllable when you bring ediscovery in house. Instead of paying for a “black box” process at an outside law firm — which may be inherently conflicted if it both collects data to process and then gets paid by volume to review what it’s collected — you’ll be able to see all your in-house costs and track them precisely. Additionally, improving case outcomes and minimizing the time to those outcomes produces its own savings; with in-house ediscovery, your ECA process can get faster and more reliable the longer you use it. Note that bringing ediscovery in house isn’t an all-or-nothing proposition. In fact, you probably shouldn’t try to overhaul your entire process in one fell swoop. We’ll offer a few incremental and hybrid approaches to ediscovery migration below. But first, to get where you want to be, you have to know where you are.
STEP 3 – Conduct An Internal Audit
Before you change anything, take the time to understand where you are today. Audit your current ediscovery system (or lack thereof) and take stock of where it works and where it doesn’t. Investigate the following considerations.
- What types of litigation do you encounter? How often? How expensive are the typical matters you deal with? How long do they tend to last? In retrospect, how quickly could they have been disposed of if you had complete and accurate information at the outset?
- How are you currently conducting ediscovery? Break this down by stage — identification, preservation, collection, processing, review, analysis and production of data — and make notes about your current process. For example, for legal holds, who determines when litigation can reasonably be anticipated? Who drafts legal hold notifications, and how? How often are hold notices reused as templates? Who identifies possible custodians? Who follows up with custodians and provides periodic reminders?
- Who is responsible for each stage of the ediscovery process? Don’t just note whether something is done in house or externally; identify an actual person or division that handles each stage.
- What software or systems are you using now? How long have you had those systems? How up to date are they? How well does each integrate with the next stage in the process?
- What do you do well? What’s working for you and your business?
- What isn’t working? What parts of the process stress you out, produce variable results or introduce unjustifiable risks?
- What are you paying for each stage of ediscovery? Don’t limit this to your software or outside counsel costs — look at what you’re paying for processing and hosting data in pending cases. Reducing your ESI volume and resolving cases faster can produce exponential savings in these areas.
While you’re looking at your ediscovery system, take the time to understand your current data structure. Understanding what types of data you generate, where data is located and who has access to it will help you set up an ediscovery system that works for your business. Consider running a full data audit now, before you upgrade anything. Send data custodian questionnaires out and analyze the results. If you encounter surprises — applications or data streams you weren’t aware of, or employees dealing with data in areas you didn’t expect — ask yourself how those situations developed. How can you set up a data notification system so you stay better informed about your company’s data patterns? Once you understand where you are now with ediscovery, it’s time to bring on all the other key players in your organization.
STEP 4 – Ensure that Team Stakeholders Weigh In
You can’t go this alone. Migrating your ediscovery process — even a portion of it — in house requires full stakeholder buy-in. You’ll need to bring your organization’s vital decision-makers, including your C-suite, HR, manager, IT and your legal team, including representatives of each litigation division, up to speed with your vision for a new ediscovery process. Explain what you need out of an ediscovery system and contrast that with what you currently have. Advise your team about the risks of not having a consistent, defensible process and identify each point in your current process where you’re creating an unacceptable risk. Describe how much each one of those risks could cost your company, whether it’s from spoliation sanctions, lost cases or uninformed settlements. Also discuss how much your current system costs directly, in terms of software, hardware, personnel and outside counsel or vendor fees. Determine who is willing to shepherd your organization through the process of moving ediscovery in house. A dedicated individual or team who can own the process will help keep you on track and focused. It will take time — at least months, if not a year or more — to define your approach, research and assess software options, complete any purchases, hire needed staff and train your team in the new method. Having key stakeholder buy-in and at least one person responsible for the process is vital to seeing it all the way through and minimizing disruption during the changeover. Now that you have a clear idea of where you are and you’ve lined up stakeholder support, it’s time to figure out where you’re going.