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Why taking control of eDiscovery should (also) be an IT initiative

Jeffrey Wolff
Sep 11, 2018, 12:01:30 AM

Even though eDiscovery technically falls within the legal department’s domain, the “e” part of eDiscovery falls to the IT department. After all, eDiscovery is a technological solution to a problem caused by technology. Choices regarding platform and data collection have ramifications for both direct and indirect costs. There’s hosting and processing capacity to consider. A user-hostile platform could drive up outside counsel's bill. Sanctions could levied if review or production mistakes are made.

Even if your General Counsel typically sends data to outside counsel, IT has to allocate somebody to deal with legacy systems and older data types. Otherwise, costs skyrocket. Plus, IT inevitably end up in the line of fire when something goes wrong.

 

Legal Technology

Clearly, the legal part of eDiscovery doesn’t work if the technology part isn’t solidly managed. It’s critical you become part of the eDiscovery conversation. How?

By taking control of the eDiscovery process.

Though such a move will require a lot of coordination between General Counsel, IT and the CFO, a solid business case for saving time, money and hassle with in-house eDiscovery can be made:

  • IT knows the company’s data better than anyone. Bringing in outside consultants to deal with legacy systems, old emails, decommissioned databases, etc., wastes time and money in the onboarding process.
  • IT is best positioned to know how much data there is, how quickly it’s mushrooming, how many new data types you’re dealing with, and where it’s all stored.
  • IT also knows of data inherited from acquired entities. Once your company, as successor, gets pulled into litigation about that entity, you’re the go-to resource for any data your company acquired.
  • IT are the ones enforcing various data policies: data retention, security, social media use, BYOD, background listening devices such as Alexa and Siri, etc. That institutional knowledge is difficult (and expensive) to pass on to outside resources such as consultants and counsel.
  • Having an agreed-upon eDiscovery process and budget now saves disagreements (and, by extension, time and cost) later.

 

Control versus risk

From an IT perspective, assuming control of the eDiscovery process makes perfect sense. However, General Counsel is likely a cautious person, that’s the nature of the job. But that cautious nature often means his or her default position is to dump massive quantities of data onto outside resources, because they’re “the experts”. It’s the legal department’s preferred method of “mitigating risk.”

But what that means is having critical IT personnel pulled off regular work and onto eDiscovery projects at a moment’s notice. Because eDiscovery always happens “at a moment’s notice.” Having a well-defined in-house eDiscovery process can allow your company to:

  • Better control the data sent to outside counsel. Doing a first-level review of the data to weed out obviously non-responsive documents can reduce the volume by as much as 90%. This cuts your storage and processing costs and allows your General Counsel to more precisely direct outside counsel’s efforts, reducing costs.
  • Keep IT people where they’re needed. A semi-automated pre-defined eDiscovery process means the legal department isn’t constantly pulling your people away from your critical projects. Once the in-house eDiscovery team is fully trained and their processes well defined, they can be mostly self-sufficient.

Being more proactive about eDiscovery starts with making calmer, more reflective decisions about platform and process. That inevitably lowers cost and gets better results. Ensuring eDiscovery processes are running smoothly before the inevitable emergency could keep you out of the line of fire. The IT department already knows the value of preparedness, because that's what IT is all about. As vendor shopping for eDiscovery solutions needs to happen when eDiscovery isn’t happening, it makes sense for the IT department to take the lead.

Find out how the latest generation of eDiscovery tools can prepare you for the next eDiscovery crisis by downloading our latest whitepaper, “Expect the unexpected: how to control the hidden costs of eDiscovery”.

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