E-Discovery: Keeping Your Company Ready to Respond to Legal Action

By Chris Preimesberger  |  Posted 2013-10-31 Print this article Print

Enterprise e-discovery entails fast and effective search for evidence in email, text messages and all other digital documents in the event of a legal action. Ten key components of e-discovery "fitness" have emerged this year as leading indicators of an organization's e-discovery maturity; fitness is an apt metaphor for corporate e-discovery programs for a few key reasons. First, an exercise regimen that works for one person may not necessarily work for another person, just as there is no true one-size-fits-all e-discovery program that will work for every company. Second, just as individuals never can give up exercise and nutrition to achieve, and then maintain, a level of fitness, implementing and executing effective e-discovery processes remain an ongoing exercise. To understand the average state of fitness at Fortune 1000 companies, FTI Technology commissioned a survey of legal departments to discuss where they are finding success, how they are overcoming key challenges and how to address dominant trends. Respondents offered practical insights into big data concerns, controlling costs, managing international litigation, leveraging emerging technology and more. In this slide show, eWEEK and the West Palm Beach, Fla.-based consultancy offer key traits of the most fit e-discovery programs.

  • E-Discovery: Keeping Your Company Ready to Respond to Legal Action

    By Chris Preimesberger
    0-Is Your Enterprise Prepared for Legal E-Discovery? 10 Best Practices
  • Recognize the Challenge of Big Data

    One hundred percent of the respondents to the e-discovery survey have seen their data volumes increase dramatically over the past three years, and many quantified it. One respondent said: "It increases cumulatively 40 percent each year." Another: "Three years ago, the average custodian had seven gigabytes of data; today, each has 31 gigabytes." This increase in volume presents real e-discovery challenges, and a solid e-discovery program recognizes these proactively.
    1-Recognize the Challenge of Big Data
  • Address BYOD

    As a result of the data explosion, 39 percent of respondents recently implemented a new data retention policy, and the majority of these participants focused on the bring-your-own-device (BYOD) workplace phenomenon. "The new BYOD policy reinforces the need for better information management and the determination about whether a document is a company record or not," said one participant.
    2-Address BYOD
  • Implement Information Governance

    The practice of updating policies often is a challenge. However, companies should create an updated data map, including new third-party cloud-based applications in use within the company, and implement and train employees on updated data retention policies, including BYOD considerations. One respondent advised, "Take a more aggressive approach to communicating with staff members about deleting irrelevant e-mails."
    3-Implement Information Governance
  • Achieve Budget Predictability

    Those companies with the highest level of e-discovery fitness typically should claim the least amount of uncertainty in their annual spending. While 61 percent of respondents said they were familiar with their total annual e-discovery spending, only one person could provide an exact figure. Assess the efficacy of different e-discovery models (in-sourcing, outsourcing through a managed service model, hybrid utilizing managed review) for your particular litigation profile and resources and utilize budgeting self-assessment tools to develop a more effective checklist of questions on pricing, process and technology.
    4-Achieve Budget Predictability
  • Think and Act Globally

    Because of the global nature of business, it is no surprise that handling international data was a recurring theme among participants. Thirty-five percent of the respondents reported regularly managing litigation, investigations or regulatory requests involving data from outside the United States. "Understand what your international business posture might be, what the risks are, and have a plan in place about resources and steps you will take," advised one participant.
    5-Think and Act Globally
  • Understand International Data Protection Laws

    Many countries outside the U.S. have strict data protection regulations that are increasingly impacting the litigation and investigations of U.S.-based multinational companies. Among survey respondents, 65 percent recently have handled data privacy challenges arising from data in non-U.S. jurisdictions. Any company dealing with data outside of the U.S. needs to proactively understand the data privacy laws in the countries they are querying for data and how they may complicate an e-discovery matter.
    6-Understand International Data Protection Laws
  • Accelerate Adoption of Analytics

    Sixty-one percent of the survey participants revealed using some type of advanced analytics or predictive coding tools on their discovery projects. "We use it to create efficiencies in our document reviews," noted one individual. Most were encouraged by the future application of these tools. Some participants noted the challenge of acclimating legal teams to understanding the best approach for leveraging the tools properly. Evaluate the benefits of visual analytics to have greater confidence in the overall process and pilot an analytics tool on a recently completed matter to evaluate potential cost savings.
    7-Accelerate Adoption of Analytics
  • Combine Predictive Coding With Analytics

    Those who have tried predictive coding reported both triumphs and challenges. "We have conducted some successful pilot programs with predictive coding; our next large review will have a heavy predictive coding focus," said one participant. Many attorneys, however, are avoiding predictive coding due to the fact that it can be non-transparent and may be challenged by the other side, as well as the lack of human attention to the review. By applying analytics in combination with predictive coding, and building workflow around both, these concerns can be alleviated.
    8-Combine Predictive Coding With Analytics
  • Reuse Coding Decisions to Save Time and Money

    Sixty-five percent of respondents were repurposing information and/or coding decisions for subsequent litigation. "It is critical; you have to do it," noted one participant. "If a document is privileged in one matter, it is privileged in all other similar matters." Although the practice of leveraging past data and review assessments for future matters is increasing in popularity, only 26 percent have a multi-matter repository to save documents and coding decisions. Corporations should research options for multi-matter repositories and determine which ones can scale to handle the litigation portfolio now and in the future as the repository grows.
    9-Reuse Coding Decisions to Save Time and Money
  • Audit E-Discovery

    For those organizations seeking to assess their fitness level, it is essential to broadly evaluate costs in connection with staffing practices, processes and technological effectiveness. In fact, 65 percent of the survey respondents had conducted an audit of their e-discovery processes. The simple act of studying operations frequently will spark a conversation that may help further address issues that are already being considered. One participant concurred, noting, "The process helped drive the argument to develop solutions."
    10-Audit E-Discovery
Chris Preimesberger Chris Preimesberger was named Editor-in-Chief of Features & Analysis at eWEEK in November 2011. Previously he served eWEEK as Senior Writer, covering a range of IT sectors that include data center systems, cloud computing, storage, virtualization, green IT, e-discovery and IT governance. His blog, Storage Station, is considered a go-to information source. Chris won a national Folio Award for magazine writing in November 2011 for a cover story on Salesforce.com and CEO-founder Marc Benioff, and he has served as a judge for the SIIA Codie Awards since 2005. In previous IT journalism, Chris was a founding editor of both IT Manager's Journal and DevX.com and was managing editor of Software Development magazine. His diverse resume also includes: sportswriter for the Los Angeles Daily News, covering NCAA and NBA basketball, television critic for the Palo Alto Times Tribune, and Sports Information Director at Stanford University. He has served as a correspondent for The Associated Press, covering Stanford and NCAA tournament basketball, since 1983. He has covered a number of major events, including the 1984 Democratic National Convention, a Presidential press conference at the White House in 1993, the Emmy Awards (three times), two Rose Bowls, the Fiesta Bowl, several NCAA men's and women's basketball tournaments, a Formula One Grand Prix auto race, a heavyweight boxing championship bout (Ali vs. Spinks, 1978), and the 1985 Super Bowl. A 1975 graduate of Pepperdine University in Malibu, Calif., Chris has won more than a dozen regional and national awards for his work. He and his wife, Rebecca, have four children and reside in Redwood City, Calif.Follow on Twitter: editingwhiz

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