It’s easy to talk about how a proactive methodology can drive down the cost of eDiscovery, but when it comes to implementation, things can get a little trickier.
Let’s face it: anticipating future legal matters and taking action before they come to pass is hardly standard operating procedure. Securing corporate sponsorship for these preparatory efforts is also a tough sell – particularly since eDiscovery pain points have a habit of fading into distant memory the moment the drama of previous litigation subsides.
As a result, proactive eDiscovery doesn’t always get the attention it deserves. For those willing to make the effort, however, the time- and cost-saving rewards can be considerable.
Here are five of the best areas in which to start.
It’s a common misconception (even amongst litigation-heavy organisations) that every eDiscovery matter is unique. In reality, almost every matter follows a set pattern of activities that needs to happen in a specific order.
By proactively documenting what that process looks like for your organisation, it’s possible to remove a huge amount of guesswork from the equation. The order of activities can also be iteratively improved by reviewing it after every litigation event to accommodate lessons learned along the way.
The resulting clarity of action can have a significant effect on litigation response times and accuracy. That means lower costs and less risk of incurring fines/penalties.
A well-documented eDiscovery process is a valuable streamlining tool. However, the best documentation doesn’t stop at the “what”. It also considers the “who” – getting the right resources involved at the right time.
In many organisations, data identification is left to IT who are tasked with providing everything that may be related to a subject or person. With little in the way of specialist legal knowledge or context to work from, it’s difficult for IT to separate the wheat from the chaff, resulting in widespread overcollection.
Once packaged and handed over to the legal team, this creates a heavier-than-necessary culling and deduplication burden that can become very costly, very fast.
A far better solution, in our experience, is to empower the legal team or other relevant business functions, to self-serve and search the data themselves. They are best placed to identifying exactly what they need – no more and no less, using their understanding of the specifics of the matter (which may of course evolve as more information comes to light). Removing the dependence on IT to perform identifications, collections and legal holds not only makes the exercise more efficient and less costly on downstream processes, but also relieves IT to get about their day jobs! All of this can be done relatively easily using tools available through the Microsoft 365 Purview suite of functionality, available as standard in the increasingly popular E5 licence package that many corporates will already have in place
Ownership and Accountability
Having a clear understanding of who is responsible for key tasks – and the timelines for their completion – is also valuable from an ownership and accountability perspective. We all work best when we know what’s expected of us, after all.
Timelines in litigation are tight, and the repercussions for poor performance can be serious (fine/sanctions/cases dismissed on technicalities). An efficient process with clear allocation of duties not only runs more smoothly, it also reduces the time and cost of litigation and ensures the best possible outcomes.
When it comes to eDiscovery, every GigaByte of unnecessary data has an associated cost and risk. That means the leaner and cleaner you can make your data estate (and therefore data searches), the lower your eDiscovery costs will be and the more you mitigate against the inherent risks contained within inappropriately retained data.
The first step towards achieving this is to understand your data better: what it is; where it is; what created it; and why you’re retaining it. Chances are, going through this process will reveal a lot of ROT (redundant, outdated and/or trivial information) hiding in the wings that is either unnecessary, or downright risky to retain.
Of course, whipping an entire data estate into shape isn’t easy. It’s likely to be a long-term project requiring a number of stakeholders (including legal and IT), all working together to define classification and retention rules and achieve a sustainably “clean house”.
Skills and Suppliers
There are some amazing tools in the eDiscovery space that offer increased efficiency and accuracy for tasks like content searching. However, the skill of the people operating the technology and running the processes is just as critical as the tools they use.
It’s certainly possible – and advisable – to upskill in-house resources to make the most of the technology you have available. That said, in-house skills, alone, are seldom the most cost-effective option.
It’s usually far more cost-efficient to outsource specialist skills and platform capabilities, for example. This tends to deliver a more reliable, scalable and overall affordable service with the added benefit of consistently leveraging the latest technology in this rapidly evolving space.
Of course, the right blend of in-house/outsourced skills will depend on your organisation’s specific talent pool and requirements. Taking the time to understand where and what these are, and what their availability, growth potential and associated costs may be, will give you a clearer idea of what eDiscovery partners you may need to bring on board.
If you’d like to find out more about how Salient could help you drive cost out of your eDiscovery process, get in touch!