Fighting Lawsuits in the Digital Era
When a company is hit with litigation, the pressure becomes intense to collect and understand the potentially relevant, electronically stored information that may support or undermine defense of the case. That pressure comes from the need to understand the scope and risk of the matter, so the company can strategize how to defend the lawsuit. The pressure also comes from the potentially high costs involved in collecting and processing the information.
As the amount of digital information grows exponentially, many organizations are establishing in-house e-discovery processes to reduce the cost and speed up the processes associated with outsourcing the work. In a 2010 e-discovery report from the Taneja Group, analysts Christine Taylor and Jeff Boles surveyed large companies on their e-discovery processes. Half of the respondents reported having an internal e-discovery capability. The analysts said this number indicates that a tipping point has been achieved for on-premises e-discovery, also called insourcing.
As part and parcel of this insourcing process, most companies implement software and hardware technology to support the change from outsourcing. Most often, the burden of implementing and maintaining the technology falls squarely on the shoulders of the IT department.
Insourcing does provide more control for the e-discovery process, as well as better access to information. This enables counsel to plan its case more strategically.
However, bringing e-discovery in-house will likely tax IT departments far beyond buying and maintaining the required software and hardware. Putting companywide processes in place to produce evidence that complies with the rules of civil procedure and continually evolving case law is a challenge.
This is echoed by analyst Katey Wood of Enterprise Strategy Group: “Much has been made of the benefits to bringing e-discovery in-house for corporate counsel—especially the cost benefits for those facing sticker shock from law firms or service providers. … But recognizing the issue still doesn’t make it easy to solve, particularly for large organizations trying to do it themselves with an entirely new cross-functional business process.”
One way to facilitate in-house e-discovery is with a corporatewide center of excellence (CoE), a cross-functional department that focuses on automating procedures, reducing inefficiencies, establishing a documented, defensible and repeatable workflow, and aligning procedures with industry best practices. While this may seem like a huge undertaking, the following guidelines can ensure a smooth transition:
There’s no ”I” in Team. A center of excellience must include IT and legal teams, for starters, collaborating to build and maintain the CoE. Collaboration starts with a clear charter for the group, and it is essential that all members understand the charter and work quickly together to produce results. In addition, senior level management ownership from either the CIO or chief legal officer is key to making the group successful.
Who’s Got the Data? The initial focus should be on knowing where the organization’s data is located and ensuring access to it, so that when a case arises, the company can act quickly. Larger organizations have extremely disparate data, in many systems, locations and formats, which can make locating and accessing it for e-discovery collections a long and complex process. A CoE can drive immediate value to an organization simply by building a data map.
Spread the Word. A big part of any CoE is evangelizing. The group cannot be successful without a broad understanding of its charter by the company’s key employees and knowledge of when those employees should consult the CoE. It’s best to appoint an executive sponsor to spread the word and make sure the rest of the organization knows when and where to turn when there is a reasonable anticipation of litigation or an actual lawsuit. Some organizations even dedicate C-level executive resources so people can travel to different parts of the organization to speak about the CoE’s capabilities.
Technology. Standardizing on technology that delivers the necessary elements of the Electronic Discovery Reference Model, along with the people certified in best practices, is an essential element to CoE success. Other company departments should be required to come to the CoE if they need to use these tools. Most centers aren’t sized for extreme caseloads, which makes having a network of trusted advisors and services partners a necessity when activities ramp up.
Predictability Is Key. Even with the best technology in place, processes and policies are essential to the success of a CoE. Creating policies that can be repeatable and predictable is the key to defensibility. It is critical that all members of the CoE understand these policies and that mechanisms are in place to ensure that such policies are followed every time.
With an e-discovery CoE, an organization will be better prepared for the unfortunate, but inevitable, situation when it is involved in litigation. The upfront effort to establish the CoE should pay dividends with greater efficiencies, significant overall cost savings and reduced risk.
Amanda Berger has implemented e-discovery centers of excellence for some of the largest companies in the United States as vice president of professional services for Guidance Software.