eDiscovery Pitfalls and How to Avoid Them
It’s now possible to eliminate many of the inefficiencies of eDiscovery, while still achieving compliance.
by Ed McCracken
Many companies that regularly navigate the challenges of eDiscovery still suffer significant inefficiencies. There is, however, a way to eliminate many of these inefficiencies, while still achieving compliance.
In electronic discovery, as in most things, it’s best to learn from others’ mistakes. Consider one company’s decision to handle its own eDiscovery needs. Facing a class action lawsuit, the firm’s leaders determined, reasonably enough, that an estimated cost of $30,000 for data collection was a lot of money. They concluded further that they had capable, highly trained IT staff who could collect the necessary emails and other electronic files for the lawsuit’s discovery phase. Nevertheless, their decision cost the company an additional $800,000 to answer a plaintiff’s claim of spoliation of evidence. They simply didn’t have the knowledge or tools to correctly gather and share data in a legally defensible way.
While larger companies are unlikely to take a comprehensive do-it-yourself approach to eDiscovery, they are prone to making similar mistakes — such as thinking in terms of “data” rather than “evidence,” and involving unqualified individuals in the chain of custody for that evidence collection and handling. Just because an act or result may be technically defensible doesn’t mean it is legally defensible. And even in cases where companies partner with eDiscovery providers, they are likely to significantly overspend on the process through lack of standardized systems and processes.
In many cases, companies leave management of eDiscovery partners to legal counsel. While that may provide competent oversight, it can lead to serious inefficiency. One reason is that law firms in different jurisdictions are likely to partner with different eDiscovery firms, which means losing the potential advantages associated with a single eDiscovery partner. More important, law firms may act without deference to their clients’ budgetary constraints, and a given case can become a black hole of expense, with legal counsel ordering services without regard to cost.
In the case of both systems and partnerships, compliance is typically offered as the rationale for multiple, disconnected capabilities; and, where there are different jurisdictions, companies often believe it is prudent to maintain distinct capabilities. But fragmentation of systems and processes opens the door to irregular treatment of data, particularly for global companies whose data may reside in multiple jurisdictions.
In the discovery process, data becomes evidence, and evidence requires a higher standard of care. Parties to a suit must be able to demonstrate an unbroken chain of custody of evidence, preserved in its original state, in a forensically sound manner. This requires the use of proper tools designed to both preserve the evidence’s metadata and provide an audit trail from beginning to end.
Too often, data-collection tasks are assigned to IT professionals who are not forensically trained or certified. It is not unusual under such circumstances for data to be accidentally altered or even deleted, and there is a chance discovery will be either under- or over-inclusive. Well-trained IT staff may properly encrypt data before sending to an eDiscovery partner, but at any time during transit it could be intercepted or compromised — or even simply sent to the wrong address. When the discovery process reaches across national borders, the risk is even greater.
The right approach
All of these sources of inefficiency and potential error are solvable with a single-partner model. With that in mind, here are key components of an effective eDiscovery solution:
- Single partner. With a single service provider, companies are able to standardize workflow into highly repeatable and defensible processes. A single-partner approach also supports preferred pricing and volume discounting.
- Single system. The right single-database system suite can provide uniform capabilities with a rich suite of intuitive tools necessary for conducting eDiscovery in compliant fashion, with vital integration into relevant client systems.
- Elastic cloud infrastructure. eDiscovery is an extremely unpredictable process, which can drag on for months or years beyond expectations — or come to an abrupt end. It would be hard to find a software capability better suited to a variable cost, consumption-based approach, which allows a client to easily scale up and scale down as needed.
- Globally standardized protocols. Global reach means highly defensible forensic processes, compliant in all jurisdictions. It also means consistent, repeatable processes to both maximize efficiency and reduce the opportunity for error caused by handoffs.
- Proven enterprise network. A highly scalable infrastructure should provide agile configuration as well as control over where data is processed and stored, and with whom. It should also include excellent standard security layers and tiered storage capabilities.
Those who place eDiscovery in the hands of specialists will significantly reduce risk and increase efficiency, enabling eDiscovery management at an enterprise level, and even on a global scale — all with a single partner.
ED McCRACKEN is eDiscovery offering lead at CSC.