With the bulk of business information now stored electronically, eDiscovery has become a vital tool for responding to requests for review and production during lawsuits or investigations. It’s a far cry from the paper-wading discovery processes of old, but the sheer volume and complexity of electronic data can make it just as time-consuming and expensive.
Thankfully, companies like Microsoft are making a big dent in the challenges associated with eDiscovery by providing a lot of its primary functionality to businesses as part of their Office 365 Enterprise licences.
The result is that organisations can, for the first time, effectively – and defensibly – perform large parts of the eDiscovery process, in-house.
Let’s take a look at how that works, and how far that functionality goes.
An intro to the EDRM (Electronic Discovery Reference Model)
To understand how far businesses can take eDiscovery using Office 365’s functionality, we first need to know a little more about the eDiscovery process using the Electronic Discovery Reference Model (EDRM).
Typically, this model divides the eDiscovery process into two, overlapping halves. The first half is process-centric and focuses on identifying, preserving and collecting potentially relevant information. The second half is data-centric, where data is processed, indexed, analysed, filtered and sorted for maximum relevance and usability.
Similar to their approach to threat protection, Microsoft has given organisations two levels of tools to tackle the preliminary stages of eDiscovery, in-house. The choice between stopping at the basic level, or adding the advanced tools, will depend on your Office 365 licensing and how far down the EDRM path you want to go.
Level 1: Office 365 eDiscovery
Office 365’s basic eDiscovery functionality is available on all enterprise licenses and handles the identification, preservation and collection portions of the EDRM.
Using a combination of the Security & Compliance Centre’s Search and In-Place Hold features, organisations can identify, preserve and collect content matching specific search criteria like keywords, custodians and date ranges. Search locations include Exchange Online mailboxes, Office 365 Groups, Teams, SharePoint Online and even Skype for Business conversations.
Benefits: Organisations can conduct their own preliminary searches and early data assessments with no need for additional software or third-party specialists. This can be reassuring for businesses reluctant to expose their full corpus of corporate data to external eyes.
Drawbacks: Without analysis capabilities, the data sets resulting from Office 365 eDiscovery searches can be bloated with duplicate loose files, unindexed or unsearchable items and possible false-positives. This bloat can seriously impact the bottom line if the data is sent on to a third-party review tool for further processing (most of these services bill per gigabyte of ingested data).
Level 2: Office 365 Advanced eDiscovery
Advanced eDiscovery is only available on Microsoft Enterprise E5 licenses. It takes things one step further on the EDRM by adding some pretty sophisticated analysis functionality, and some basic review tools. This enables organisations to leverage text analysis (themes), near duplicates, email threading and Technology Assisted Review (TAR) to weed out redundancies and irrelevancies from their data sets, and cluster the remaining documents according to the information they contain.
Benefits: Organisations can perform more effective early case assessment in-house to dramatically reduce the size of data exports to third-party review tools and reduce overall eDiscovery costs on cases moving forward.
Drawbacks: While functionality is being added all the time, Office 365 Advanced eDiscovery can’t quite replace third-party review tools yet. There are complexities (like loose file deduplication, foreign language recognition, managed review and production) that only specialist tools can handle for now. Leveraging Microsoft’s technology effectively also requires a bit of training, particularly for more sensitive forensic matters. It’s best performed by an in-house analyst or counsel, or a partner like Salient.
Are Office 365’s eDiscovery tools really up to the job?
The answer to this question is both yes and no.
Where Office 365 Advanced eDiscovery still falls short is on the review and production side of things. That said, few organisations are capable of running a large, managed review on an in-house eDiscovery platform anyway. That portion of the EDRM is almost invariably outsourced to a third-party provider, regardless of what in-house tools may (or may not) be available.
The good news is, thanks to Office 365 Advanced eDiscovery functionality like email threading and themes, you’ll be able to hand over a significantly reduced and more relevant data set to your law firm for review and final production. That can save them a huge amount of time and you a huge amount of money.
(Pro tip: When using Office 365 Advanced eDiscovery’s TAR, you can literally plug in your law firm’s hourly rate alongside the review-recall ratio calculation and see the estimated impact on costs.)
The other good news in the eDiscovery space is that the tools available to law firms for getting your evidence to the point where it can (hopefully) save your bacon in court are improving all the time. Both the technology they use (including AI techniques like continuous active learning, cognitive search and visualisations) and the platforms on which those solutions are delivered (e.g. the cloud) are helping to cut costs and shrink timelines for everyone involved.