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

By Chris Preimesberger

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.

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.

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.”

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.

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.

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.

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.

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.

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.

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.”