E-Discovery Traps: How to Spot—and Avoid—ThemBy Guest Author | Posted 2015-08-17 Email Print
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Responding to an e-discovery request without proper counsel and expertise can have a major financial impact and delay proceedings. Here's how to avoid blunders.
By Jason M. Glass
“You’ve been served!” Those three words can send a chill through an organization and push in-house and outside counsel into overdrive. And as more and more e-discovery data—phone records, texts, online activity, etc.—is being used, the sheer volume and variety of information these teams need to sort through is staggering. Getting from “You’ve been served” to a day in court has never taken longer.
Many organizations respond to an e-discovery request in a similar fashion. They ask themselves: “Why spend money on a third-party vendor when we have internal IT resources in-house who can handle the data collection and analysis?”
While this may be the case, entering into an e-discovery matter without proper counsel and expertise can have a major financial impact on an organization and delay critical proceedings. To avoid that, I’ve identified a few critical traps that organizations can fall into during e-discovery.
Where Is All the Data?
One of the first traps organizations fall into is not having a handle on where all their data is located. Some may have data silos as a result of mergers and acquisitions, while others may have a loose bring-your-own-device policy that makes finding data overwhelmingly difficult.
A general counsel of a midsize insurance company mentioned that he spends more time identifying the “tree” on whose branches the documents may sit than he does actually gathering the documents. I hear this all the time. Companies are spending too much time trying to track down where potentially responsive data may reside within their organization.
One of the first steps in any e-discovery data collection project is to build a data map. This is the starting point in creating a game plan to collect potential data: knowing where it is located and what type of repositories a company has.
Midsize corporations should consider working with the same e-discovery service provider over time. That provider will come to know their systems, making it easier to respond faster and more efficiently when litigation matters arise.
How Much Data Should We Keep?
Another pitfall for organizations is finding the right balance between preserving data and purging it. In a quantitative study of the costs of preserving data for legal purposes, William Hubbard found that midsize corporations seem to be most vulnerable to the financial burdens of data preservation efforts. He said they also take “the brunt of business-crippling” data preservation sanctions.
Hubbard found that the largest companies surveyed had data preservation budgets of more than $40 million a year. However, companies with fewer than 10,000 employees were rolling the dice and saving all electronic data indefinitely to avoid e-discovery mistakes and the possibility of costly sanctions.
The study showed that only a fraction of preserved data is ever collected, and an even smaller fraction of the data is actually processed and produced during litigation. More importantly, even the slightest rule changes to the Federal Rules of Civil Procedure (FRCP), in particular Rule 37(e), could result in million-dollar savings per year by lessening the need to overpreserve data. The savings would mostly be realized by streamlining the data collection and review process; eliminating the need to review data that does not pertain to the merits of the case.
So, the key question is, How can you strike the right balance for your organization?