Santa Clara, Calif.-based Clearwell Systems is one of the market leaders in the burgeoning e-discovery software business. There are many aspects to this kind of specialized search which can take legal folks through mountains of stored data, including email, photos, video, financial documents, human-resource records, health records, sales and marketing documents and many others.
Text messages and social networking messaging also have become fair game for litigators during the last couple of years. All that content must be stored somewhere, if your company is adhering to the 2006 amendments to the Federal Rules of Civil Procedure, the 2002 Sarbanes-Oxley Act, HIPAA and other regulations.
According to a recent report furnished to the Department of Justice, pretrial evidence discovery expenses alone now represent 50 percent of litigation costs in an average case. In situations where discovery is actively used, it could represent as much as 90 percent of litigation costs, often approaching and even exceeding $1 million on a single case.
Most of that overhead is the cost of paying lawyers and interns hundreds of dollars per hour to pore over and classify email and all those other records. Companies don't need to outsource all that tedium anymore. A trusty e-discovery package can be pricey, but it can save a lot of money in the long run if your company's got legal business to handle.
In any case, here are five valuable pieces of advice for companies looking to either add a new e-discovery component or augment the one they already have working. The Station thanks Clearwell for putting this information together for eWEEK readers.
1. E-mail Archiving is not a silver bullet. Email archiving is an important step in good data hygiene, but it is not the complete solution for two important reasons.
First, most email archiving products do not offer the advanced analysis and review capabilities the legal team requires in response to discovery and compliance requests. Second, email archives are just one piece in the rapidly expanding spectrum of data sources - such as collaboration tools (SharePoint, wikis, blogs), social media (Twitter, Facebook, LinkedIn) and structured databases (ERP, CRM systems) - that are increasingly becoming relevant sources of discoverable material.
Make sure to consider a solution that covers all critical data sources involved in e-discovery, not just email. "Discovery requests for electronically stored information (ESI) may include file data [and] aren't limited to email," said Gartner e-discovery analyst Sheila Childs.
2. Underestimating the real cost of storage. Declining storage costs (per-gigabyte costs have dropped from about$20 in 2000 to less than 10 cents in 2010) have resulted in a "save everything" approach for many IT departments.
However, the real cost of keeping everything often lies beneath the surface. During e-discovery, the cost to process and review that stored data is multitudes more, often averaging $5,000 per GB in terms of processing and attorney review costs. With this in mind, there must be a change in data retention policies to avoid a downstream data deluge and the crippling resultant costs.
3. Don't rely on technology to solve the problem. Technology is a crucial element in e-discovery, but it is not the sole answer. Similar to any business process within the enterprise, effective and defensible e-discovery requires a balance of people, processes and technology. In addition to the right technological solution, enterprises must deploy best practice workflows and staff with experienced people who can manage the entire process.
4. Trying to solve a non-linear problem with a linear approach. E-discovery is an iterative process that involves back and forth between the preservation, collection and review phases. For example, the scope of a collection, which is typically handled by IT, could vary greatly depending on the feedback from legal, which analyzes and reviews data. Any such downstream change would require IT to go back and perform additional collections.
Traditional approaches are often rigid and require multiple tools to be used to complete the e-discovery process, inhibiting best-practice workflows and increasing errors resulting from manual hand-offs. Be sure to select solutions that support an iterative e-discovery workflow across IT and legal departments and cover multiple phases of the e-discovery process.
"Keywords and search queries change even in the simplest of cases, creating back and forth throughout the e-discovery process. Thus, it is very important to reduce the number of tools and eliminate the repetitive movement of data," said Jay Brudz, GE's senior counsel of legal technology.
5. Attempting to "boil the ocean" by indexing everything. It can be tempting for IT to turn to a solution that can index all data sources - laptops, desktops, file servers, SharePoint servers, databases, email archives, content management systems - and enable legal to perform early case analysis across the entire enterprise in an instant.
The reality is that while such a solution may work for small and medium-sized companies with a finite scope of data, the level of complexity in scale and operations makes this simply not an achievable approach for most large enterprises.
Be realistic; leverage the capabilities of your existing systems in crafting a proactive early case assessment strategy tailored to the needs of your organization.