Fighting Lawsuits in the Digital Era

When a company is hit with litigation, the pressurebecomes intense to collect and understand the potentially relevant,electronically stored information that may support or undermine defense of thecase. That pressure comes from the need to understand the scope and risk of thematter, so the company can strategize how to defend the lawsuit. The pressurealso comes from the potentially high costs involved in collecting andprocessing the information.

As the amount of digital information grows exponentially,many organizations are establishing in-house e-discovery processes to reducethe cost and speed up the processes associated with outsourcing the work. In a2010 e-discovery report from the Taneja Group, analysts Christine Taylor andJeff Boles surveyed large companies on their e-discovery processes. Half of therespondents reported having an internal e-discovery capability. The analystssaid this number indicates that a tipping point has been achieved foron-premises e-discovery, also called insourcing.

As part and parcel of this insourcing process, mostcompanies implement software and hardware technology to support the change fromoutsourcing. Most often, the burden of implementing and maintaining thetechnology falls squarely on the shoulders of the IT department.

Insourcing does provide more control for the e-discoveryprocess, as well as better access to information. This enables counsel to planits case more strategically.

However, bringing e-discovery in-house will likely tax ITdepartments far beyond buying and maintaining the required software andhardware. Putting companywide processes in place to produce evidence thatcomplies with the rules of civil procedure and continually evolving case law isa challenge.

This is echoed by analyst Katey Wood of Enterprise StrategyGroup: ?Much has been made of the benefits to bringing e-discovery in-house forcorporate counsel?especially the cost benefits for those facing sticker shockfrom law firms or service providers. ? But recognizing the issue still doesn?tmake it easy to solve, particularly for large organizations trying to do itthemselves with an entirely new cross-functional business process.?

One way to facilitate in-house e-discovery is with acorporatewide center of excellence (CoE), a cross-functional department thatfocuses on automating procedures, reducing inefficiencies, establishing adocumented, defensible and repeatable workflow, and aligning procedures withindustry best practices. While this may seem like a huge undertaking, thefollowing guidelines can ensure a smooth transition:

There?s no ?I? in Team. A center of excellience must includeIT and legal teams, for starters, collaborating to build and maintain the CoE.Collaboration starts with a clear charter for the group, and it is essentialthat all members understand the charter and work quickly together to produceresults. In addition, senior level management ownership from either the CIO orchief legal officer is key to making the group successful.  

Who?s Got the Data? The initial focus should be on knowingwhere the organization?s data is located and ensuring access to it, so thatwhen a case arises, the company can act quickly. Larger organizations haveextremely disparate data, in many systems, locations and formats, which canmake locating and accessing it for e-discovery collections a long and complexprocess. A CoE can drive immediate value to an organization simply by buildinga data map.

Spread the Word. A big part of any CoE is evangelizing. Thegroup cannot be successful without a broad understanding of its charter by thecompany?s key employees and knowledge of when those employees should consultthe CoE. It?s best to appoint an executive sponsor to spread the word and makesure the rest of the organization knows when and where to turn when there is areasonable anticipation of litigation or an actual lawsuit. Some organizationseven dedicate C-level executive resources so people can travel to differentparts of the organization to speak about the CoE?s capabilities.

Technology. Standardizing on technology that delivers thenecessary elements of the Electronic Discovery Reference Model, along with thepeople 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 touse these tools. Most centers aren?t sized for extreme caseloads, which makeshaving a network of trusted advisors and services partners a necessity whenactivities ramp up.

Predictability Is Key. Even with the best technology inplace, processes and policies are essential to the success of a CoE. Creatingpolicies that can be repeatable and predictable is the key to defensibility. Itis critical that all members of the CoE understand these policies and thatmechanisms are in place to ensure that such policies are followed every time.

With an e-discovery CoE, an organization will be betterprepared for the unfortunate, but inevitable, situation when it is involved inlitigation. The upfront effort to establish the CoE should pay dividends withgreater efficiencies, significant overall cost savings and reduced risk.


Amanda Berger has implemented e-discovery centers ofexcellence for some of the largest companies in the United States as vicepresident of professional services for Guidance Software.