Getting Started With E-Discovery

 
 
By David Strom  |  Posted 2009-09-29
 
 
 

The news is filled with reports about companies buried in legal fees as a result of the presence or absence of a key document. The process of using various automated systems to track documents is called electronic discovery, and many e-discovery solutions are available—often with six-figure implementations attached. Unfortunately, only a small number of companies have implemented such systems fully.

A blog post by Forrester analyst Brian Hill says, “Few companies report having a holistic approach to e-discovery. Just 23 percent have an end-to-end approach to gather and filter data.”

So what’s the best way to get started before that big suit hits, and what can you implement quickly that will be a good foundation? When implemented correctly, the best e-discovery systems can save a pile of cash and time, and can become real productivity boosters.

Curtis Rawlings, assistant CIO of DeKalb County, Ga., is using Symantec’s Enterprise Vault Discovery Accelerator and calculates that the county has saved more than $75,000 annually as a result. “The county receives about four requests a month for various records, and, in the past, each one used to take an average of 33 hours of staff time to do the research and respond because many e-mails were only available on backup tapes,” he says. “Now, a request can be filled in an hour, as a result of having all the various e-mails and files cataloged and organized by the software and online.”

For Dallas-based law firm Haynes & Boone, using Excel worksheets to track custodians, data sources and other e-discovery-relevant information and following project status through phone calls and e-mail were cumbersome tasks that often resulted in the duplication of efforts and information. To centralize the maintenance of its documentation and workflow needs, the firm invested about $40,000 on Exterro’s Fusion software. It more than paid for itself in time and cost savings on communications and creating more consistent operations, says Randy Girouard, manager of automated legal services.

“Fusion didn’t introduce us to documenting and creating workflows,” he explains, “but it did give us a centralized place with better access for all users, and it helped us force compliance of our internal processes.”

Roswell Park Cancer Institute, in Buffalo, N.Y., improved efficiencies by using the Integrated Archive Platform (IAP) from Hewlett-Packard (HP) to archive its corporate e-mail. “Before we had this system, we had to ask people to find their e-mail on their individual PCs because we didn’t keep them on a central server until January 2008,” says Camille Wicher, vice president of corporate ethics and research subject protections at the institute. “Now that we have the IAP, we are able to quickly locate specific matters or employees. It’s useful for a variety of applications. For example, we can substantiate whether a harassment claim happened over e-mail.”

Look Before You Leap

Before beginning an e-discovery process, take a look at the standardized model from the Electronic Delivery Reference Model, an industry group created to develop and establish e-discovery guidelines and standards. On edrm.net, you can see a series of working groups and other efforts to bring some sense to this landscape. The whole nature of legal discovery is shifting as a result of these standards and better tools.

“The paper world had lower volumes, lower risk of spoliation [deleting, hiding or withholding evidence] and had its information gathering spread out over longer time periods,” says Ron Best, director of legal information systems at the law firm Munger, Tolles and Olson in Los Angeles. The firm uses Clearwell’s e-discovery software.

“Paper used a hub-and-spoke approach, with the case attorney at the center with outgoing single lines of support,” he explains. “The attorney sent orders, and individual team members reacted. That is no longer possible with the nature of data and information systems today. The data is too voluminous, the systems are too complex, the risks are higher and time is compressed. In such a paradigm, there is only one answer to the question of who should be involved—a nimble, well-informed team.”

The first step is to locate your critical data and determine how it is used—what many call a “data map.” Jason Straight, senior managing director of Kroll Ontrack’s Computer Forensics in New York, advises: “Before you buy any system, spend some time with your lawyers and create a data map that will give you a sense of where your most critical documents reside and which applications created those documents. Although technology can assist in this, it is a very manual process, and knowing the right people to interview is critical.”

Second, have clear data-retention policies. “Make sure your data-retention policies are written—and make sense—for the business and are periodically revised,” Straight says. “Also ensure that these policies are enforced and followed.”

Sometimes, what isn’t specified in these policies can cause problems. “The new regulations and guidance in the area of e-discovery will work for you if you have a records management policy and system in place before the legal hold and e-discovery process starts,” says Maureen Durack, director of management information services for law firm Vedder Price in Chicago. “If there are no procedures or policies, you can’t make assumptions about how your information is stored, or how it can best be retrieved in order to save time and money.

“The IT department is under pressure to reduce costs, but it often has no guidance on how and when data can be destroyed. A good records management policy governs paper and electronic records, and provides the process and procedures for storage, organization, retrieval and destruction—aligning the goals of the organization with the goals of IT and legal.”

Understand Workflow

Third, understand your document workflows at both the departmental and enterprise levels. Inefficient, duplicate and overlapping workflows can stretch the cost of e-discovery, says Doris Pulsifer, senior manager of the Knowledge Management Group at Skidmore, Owings & Merrill, a Chicago-based architectural and engineering firm.

Litigation is becoming too complex not to approach it in a structured way, points out Andrew Drake, assistant general counsel for discovery management for Nationwide Mutual Insurance Co. in Columbus, Ohio. The company is using Guidance Software’s EnCase eDiscovery, which automatically performs search, collection, preservation and processing of electronically stored information.

“With poor workflow, technology tools will just magnify bad practices,” warns Best of Munger, Tolles and Olson. “If you have a good, solid workflow and get a couple of good tools, you can save a lot of money and pay for the tools with a single suit. But if you don’t have the workflow, you will be wasting your money.”

It’s crucial for a company to get a handle on what data it has and how it is stored, and document a process for retrieving that data when a crisis hits, such as a subpoena, investigation or e-discovery document request, says Straight of Kroll Ontrack. “It sounds obvious, but we find that even when companies have data maps, the maps are often woefully out of date or are in a form that only an IT professional can understand,” he says.

Fourth, understand that just because a document is electronic doesn’t mean that you can capture the information needed for legal matters. “We also have to be able to manage content from a broad spectrum of other places, such as proprietary legacy systems, forensic data like hard-drive images and, of course, paper,” says Drake of Nationwide Mutual Insurance.

Skidmore, Owings and Merrill finds it challenging to track construction drawings in its CAD system because there are often multiple layers of a drawing that are no longer valid. “Also, we use Microsoft Project, and getting accurate information of our project plan can be tricky because there are many ways to view the data,” Pulsifer explains. “Sometimes we just end up producing PDFs to capture this information.”

The final part of the selection process is picking the right members of the evaluation team to examine the right e-discovery product. The best strategy is to have a wide variety of stakeholders on the selection team to represent various parts of the business that will use the system. These stakeholders should be identified early and given their proper role in the project, advises Best of Munger, Tolles and Olson.

When HOK piloted Newforma project information management software, the St. Louis-based architectural firm involved project managers from across the company. “We also tested it in Toronto to make sure there weren’t any international issues,” says Ken Herold, senior vice president and chief knowledge officer. “Our projects can be distributed across many offices, so that was critical when we chose our tool.”

All stakeholders should be onboard and should understand how an e-discovery tool will affect them and what they are going to be doing with the tool, Straight of Kroll Ontrack recommends. “Some e-discovery or document management tools are huge bandwidth hogs or will add some steps to how users create documents by requiring certain key fields to be filled in at the time of document creation,” he says.