Discovery Risk Mitigation: Transition from Hoping for the Best to Planning for the Worst

Proactive eDiscovery

It’s probably a common reality in the eDiscovery world that as service providers, we spend the majority of our time supporting clients who are under duress, responding to an internal investigation or external litigation event. This can generate higher stress situations for us as providers but likely nothing compared with what the client is facing. As well as the risk or exposure, they may well be facing unplanned bills to outsource work that might otherwise have been done more cheaply in house, if only those deadlines weren’t there!

Prepare for The Worst

When deep into damage control, it is probably not the best time to point out to a client that being prepared would have put them in far better stead to respond when an event strikes. But equally, leaving the discussion about preparedness until long after the dust has settled may result in it becoming a distant, painful memory replaced in the here and now by more pressing immediate needs, and the impetus is lost. That is until there is a next time.

So, choosing the moment to broach the subject of how clients can help themselves prepare for the worst is crucial. But then equally, if not more important, is the substance of what you propose. Moreover, one size does not fit all. Risk appetites, data governance policies, regulatory controls and many other factors will all vary from client to client. That which is a critical risk to one may well be perfectly acceptable to another. We are all living with increased regulation. Not least of which being privacy in the forms of GDPR and other similar frameworks. But evaluating all the criteria in a structured, facilitated way is the key to establishing a bespoke strategy for preparedness.

Discovery Risk Mitigation Provides a Strategic Approach to Preparedness

At Salient, our objective when working with clients is to assist them in establishing a pragmatic eDiscovery strategy that incorporates both shorter term remedial actions and a longer-term mitigation outlook.

Remediation

A robust remedial eDiscovery strategy should include data identification, preservation and collection plans, processes, resourcing, responsibilities, and technologies to respond to an investigation or a litigation event. It may well include both internal and third parties as necessary, recognising that the client may not have the requisite skills or technologies in-house for every possibility.

For example, how should a client comply with a legal hold instruction or who has board-level responsibility for effecting a data collection?

Mitigating Risk

We believe that in addition to establishing these remedial paths, clients can also benefit from embarking on what may be a longer-term process of mitigating underlying risk factors. eDiscovery, as the name implies, relates to Electronically Stored Information (ESI), and we are sure that all are painfully aware of its exponential growth, along with similarly expanding regulatory controls that govern it.

Aside from the sheer cost of storing it all, it inherently contains risk. Historically there has been a reluctance to dispose of content for a fear that we may be deleting valuable assets. However, we would posit that increasingly, the risk outweighs the potential value. Especially when you take into account the cost of storing it all ad infinitum. Or, indeed, the cost of processing it when it all becomes subject to disclosure or review.

Clearly, in many industries, regulatory controls are mandated. Still, even working within those, there is value in improving classification, taxonomy, and security frameworks to assist with monitoring. For example, controlling potential data leakage and ensuring data is defensibly deleted once its retention period is expired. It is no longer subject to any regulatory retention requirement.

Even consolidating legacy data for retention in more effective and better-controlled storage can be a valuable undertaking. What’s more, the technologies that assist with remediation, such as cognitive analytics. It can also be applied proactively in a supervisory role to provide further mitigation and insight.

To conclude, there is a strong argument for bringing the two threads of remediation and mitigation together. Together, they provide the essential groundwork for making the transition from hoping to planning. 

At Salient, our Discovery Risk Mitigation solutions do just that and support the corporate legal team’s transition from hoping for the best to planning for the worst. So, to put your mind at ease by adopting a more strategic approach to preparedness and cutting the cost of being purely reactive, why not get in touch. We’d be delighted to assist you.