Recently, Exterro hosted a multi-part series that broke down major the four major components that e-discovery professionals must master in order to truly understand their craft. The E-Discovery Masters series takes a closer look at where e-discovery professionals should turn their focus over the next year to take the next step in elevating their skills.
In support of that series, we’ve also put together a guide that accompanies that material: Mastering E-Discovery. There’s a lot to cover—but below we’ll briefly take a look at each section. Be sure to download the full guide!
1. Mastering Costs
Legal departments are in near-unanimous agreement that there’s value in establishing a comprehensive legal spend strategy. Unfortunately, that doesn’t mean all teams are doing it; according to the 4th Annual Study of Effective Legal Spend Management, about one-third of Legal departments don’t have a strategy for their legal spend.
When it comes to mastering e-discovery costs, some of the problem simply comes down to how you’re measuring performance—or whether it’s being measured at all.
“I think that it can be hard to develop a really comprehensive legal [spend] strategy if you don't feel like you're armed with the metrics that you need that you can gather from different legal technologies,” says Elizabeth Erickson, the Senior Director of Discovery Consulting for Consilio.
If you don’t already track e-discovery metrics in your Legal department, doing so can help measure elements related to time, spend, and efficiency of operations—and may unveil new areas to focus on creating savings. For additional assistance and automation, some e-discovery software may offer a reporting dashboard that can be customized to help Legal departments better understand their metrics and take immediate action.
2. Mastering Defensibility
Courts tend to focus on reasonable, consistent, documented processes during litigation. In today’s legal and regulatory landscape, establishing defensible processes is more important than ever in helping to ensure favorable legal outcomes during discovery. Given that there are any number of potential sanctions for not providing agreed-upon material during litigation, the Legal department must be able to collect that information in a timely manner and ensure accuracy.
“Rule 37(e) [concerning spoliation of ESI] gets a lot of play,” says former federal judge Ron Hedges, who is now a Senior Counsel for Dentons U.S. “Everyone is concerned about the imposition of sanctions.”
With data management practices coming under greater legal and regulatory scrutiny, it’s more important than ever to establish methods to help ensure that Legal departments can showcase defensibility in court, if needed. The below steps can help ensure that preservation steps are followed to help avoid sanctions related to spoliation of ESI.
- Did you circulate a legal hold in timely fashion?
- Were the legal holds distributed to custodians/data sources (fileshares, IT admins, etc.) who may hold potentially responsive data?
- Did you send out reminders/re-issuance hold notices?
- When new employees arrived in the company, were they put on legal hold?
- When employees on legal hold depart the company, was their data preserved?
- For key custodians, have you taken relevant data and put it in a separate place where it cannot be disposed of by users? What about custodial interviews to determine if you have the right custodians and if so, where they kept the relevant data?
- Did you suspend document retention policies applying to relevant data sources? Did you check new data locations and data sources (structured databases, third parties, cloud, social, mobile)
3. Mastering Strategy
Building a more holistic e-discovery strategy starts with understanding your data. Your organization’s data—what you have, where it’s stored, who has access to it—is a key component of the litigation battlefield. While environmental forces like regulatory changes and the general proliferation of ESI may have made it more difficult to have a handle on all your data, this is perhaps the most critical aspect of your e-discovery strategy because it can help define the parameters of your side of a case.
Brett Tarr, a former Senior Manager for law firm Ernst & Young, says that it’s imperative for Legal to quarterback an organization’s data management strategy.
“I think starting with Legal is probably pretty prudent because ultimately, the burden for managing violations in discovery, in privacy, and other regulatory compliance falls upon Legal,” says Tarr. “Really, the buck stops there and Legal needs to be, if not the, then certainly one of the leading voices in understanding the risk and quantifying it for the organization. That leads to a process where you understand, organize, and manage enterprise data based on the requisite risk that each type of data creates.”
4. Mastering Technology
As in-house Legal teams continue to improve their efficiency, finding new ways to reduce costs and do more with less, there may be no more powerful tool along that journey than technology. E-Discovery software brings together all of the aspects we’ve covered in this e-book: controlling costs, increasing defensibility, and building a more holistic strategy.
We’ve noticed five major trends that in-house teams are adopting to create greater efficiencies through technology and process optimization. We won’t go over all of them in-depth (we do in the webcast and the full Mastering E-Discovery e-book), but at a high-level, they are:
- Trend #1: Bringing More E-Discovery Processes In-House
- Trend #2: Focus on Technology that Empowers You to Know More More About Your Case Sooner
- Trend #3: Focus on Technology that Enable You to Help Ensure Preservation Defensibility
- Trend #4: Expanded Connectors for E-Discovery Software
- Trend #5: Re-Purposing E-Discovery Software for Functions Outside Litigation