By Tim Rollins
For the past decade, enterprises have been increasingly incorporating legal technology, and in particular, e-discovery technology, into their routine operations. Traditionally, they’ve started with legal hold technology for a number of reasons. Legal holds are the starting point for e-discovery; by requiring (or automating) the preservation of potentially relevant electronically stored information (ESI), they kick off the e-discovery process. Manual legal hold processes, involving potentially hundreds of custodians across hundreds of legal matters, are inefficient and prone to human error.
But enterprises with mature legal operations recognize that technology delivers such efficiency and cost savings that they continue to invest in it beyond traditional tools like legal hold. In fact, in a recent survey of 250 in-house counsel and legal operations professionals, 63% of all respondents, including 90% of respondents at mature organizations, said legal technology was a “must have.”
In a recent webinar, titled Don't Get Left Behind: Why Bringing E-discovery Tech In-House is Much More Than Legal Hold, Linda Luperchio, Director of E-Discovery and Information Governance at Hanover Insurance, and Jenny Hamilton, Esq., General Counsel at Exterro (and a former legal leader at John Deere Co.) discussed some key considerations for organizations considering bringing more e-discovery technology, particularly document review, in-house.
Starting with Legal Hold
Jenny Hamilton explains the impetus to start with legal hold simply: “It’s extremely difficult to outsource the preservation piece. Most companies who have some maturity at least have a solid E-Discovery tool and process instead of the spreadsheets from the old days. It’s very typical to own the legal hold and the collection process, and then start to outsource and transfer data out of the company when you get to the point of running analytics, processing data and putting it out for review.”
The key to moving onward and incorporating more e-discovery operations (and technology), is building out your process, says Linda Luperchio. “The key is to have your program in place. So when the E-Discovery project walks in the door, that's not the time to figure it out. You want to know what you're going to use, how you're going to do it, who's going to do it for you, if it's not in-house and even if it is in-house.”
Identifying E-Discovery Gaps
Even with process in place, organizations face gaps in their e-discovery workflows. They might be handoffs between different teams (IT and Legal), different organizations (in-house legal, outside counsel, and even legal services providers), or technologies (from preservation to processing to review). Teams both inside and outside the organization become trapped in silos, with limited visibility into what’s happening where, when, and how. This creates opportunities for errors and inefficiencies to occur.
Jenny Hamilton observes, “Towards the right side, the challenges that become more visible is just the communication that has to take place between all the different stakeholders and handoffs through the process… and you have to have additional controls put into place to make sure that counsel is engaged and weighing in on decisions being made earlier in the process, and that can be challenging with all of the communication and the handoffs.”
Unifying the E-Discovery Process
Faced with this challenge, Linda Luperchio had a powerful idea to make e-discovery run better at Hanover: bringing the process together on one team would reduce the potential for errors and get e-discovery done faster, cheaper, and more effectively. “I quickly realized at that point, we don't own the rights of [IT professionals], so I’d have to ask, ‘Can I please get this done? Could I please get this done today?’ So very quickly we brought our E-Discovery group into legal. So when we need a E-Discovery and it's a high priority, the people are right there. There's no concern that they won't have time for me. And that was an enormous change for us and a very, very positive change.”
But unifying e-discovery shouldn’t stop at building a process and then creating a dedicated team. Technology has a critical role to play as well. Luperchio continues, “The other piece you've got to think about is, you need a solution that's going to have the ability to flow from one part of the E-Discovery process to the other, from your data map to your legal hold, from your legal hold over to your collection. Having them in different solutions just doesn't work well... You can't possibly know everything that's going on if you have to leave [one technology] solution to go to another one. Having review as part of that platform is a huge bonus, because we can go right from where we collected the data, drop it over into review, make batches, review the batches, and bring it back into the vault.”
Secure E-Discovery In-House
Security has become a major, if not the primary, concern for many legal leaders at enterprise organizations--and it affects the bottom line in more ways than one. Jenny Hamilton explains, “Given what we've seen the last couple of years of just with ransomware has been astounding. Insurance companies are looking at controls around data, particularly the types of sensitive data that gets involved in the average litigation case. And they're starting to ask a lot of questions. If you are an organization who relies on security insurance, what are the controls you have around your data in e-discovery? And if you're sending it to other organizations, what are their controls around data? You're still accountable for the third party organizations.”
And that trend is spreading. In a recent ACC-Exterro survey, The 2021 Legal Technology Report for In-House Counsel, 43% of organizations over one billion are leveraging some sort of document review software in-house. A lot of legal departments are starting to move the document review process in-house, meaning not that they're doing all the review themselves, but they're deploying document review software internally and having their law firms and service providers access it. At Hanover, that’s been a big win. Luperchio says, “When I say to outside counsel, ‘We have an end-to-end solution. You come in through a connector behind our firewall, so there's no security risk. You can use our application to review.’ Immediately, I am their best friend, and they're more than happy to use our solution.”
Document Review Is Critical to In-House E-Discovery
In Jenny Hamilton’s perspective, having review in-house is more than a bonus. It’s a necessity. “You're going to need to be able to process, analyze and review the documents in one location, and to do it very quickly, much quicker… the time it takes to do that itself presents a risk to certain matters.” For Linda Luperchio, it was also a matter of savings and efficient collaboration with external teams. “If I'm doing this much [e-discovery] and I'm saving 25%, if I do that much more, will I be saving 50%? Ultimately, had we sent all of our e-discovery outside, we would've spent over three million [dollars]. Instead, our spend was $295,000 and our realized savings was $2.7 million.”
If you want to hear all about bringing e-discovery review in-house and why it’s so critical to enterprises today, check out the webinar Don't Get Left Behind: Why Bringing E-discovery Tech In-House is Much More Than Legal Hold in Exterro’s resource library today.