By Tim Rollins
In the not-so-distant past, fear was a big motivator for organizations to invest in e-discovery software. Tom Mullane, E-Discovery Process Manager at United Technologies Corp., remembers, “Risk was a huge driver. It was easy to point at several large and well-publicized sanctions cases that highlighted the importance of creating your own internal program.”
But since the FRCP amendments of 2015, judges have adopted more proactive case management strategies, steering cases toward resolutions, using meet-and-confers to resolve potential e-discovery disputes where possible, and pushing (if not successfully) for greater cooperation between opposing parties.
While the dramatic headlines may be fewer and farther between, the case for bringing e-discovery in-house is still quite compelling. And the three big drivers are familiar, too: money, efficiency, and risk.
Managing E-Discovery Costs with Software
The high costs of outsourcing all e-discovery activities can weigh heavily on legal departments. Even bringing part of the process in-house, like legal hold management, can make a substantial impact on a departmental budget.
Tara Jones, Lead Paralegal for E-Discovery and Litigation at Oath, explains, “We were definitely trying to combat the costs. The costs were outrageous constantly using outside firms.”
In fact, the largest line item of cost is document review. Teams that have already brought processes like legal hold in-house can reap even greater savings by conducting first-pass, privilege, and even in-depth reviews in house. And modern review technology includes advanced artificial intelligence capabilities that can do everything from summarize and translate documents to ensuring that the most efficient and most accurate reviewers are prioritized throughout the process.
Increasing Efficiency of E-Discovery Processes
Bringing e-discovery processes in-house will increase your ability to manage and improve it.
Alayne Russom, Business Ethics and Legal Support Manager at Thrivent Financial, saw problems in communications and process. “There was a disconnect over who was doing what and when. There appeared to be a disconnect over where information was located and what had been sent to outside counsel. Custodians were confused as to who they should contact for each of their legal holds.”
Make sure you understand your e-discovery process and get software that complements it, rather than building a process around technology. If you don't have your workflow for e-discovery documented, organize a meeting with key colleagues and map it out on a whiteboard, from the receipt of a complaint or notice of a suit through to document production and litigation or settlement decisions.
Managing Risks in E-Discovery
Repeatable, documented processes for e-discovery reduce the risks present in the e-discovery process. Reasonable preservation and defensible legal hold processes limit the chances of sanctions or negative case rulings. While the frequency of sanctions may rise and fall over time, they are still an important element of the Court's toolkit to assure a level playing field and ultimately to achieve just resolutions of civil disputes.
If you don't think sanctions are a big deal anymore, check out our whitepaper, Don't Get Sanctioned like These Parties!
Start Your E-Discovery Software Buying Process
Whether cost, efficiency, managing risk, or some other reason is prompting you to move e-discovery in-house, the next step is answering the question: “Which parts of the process you want to bring in-house?”
In the past, it was traditionally easier to start at the beginning of the e-discovery process, with preservation and legal hold. But now, with e-discovery software platforms that span the EDRM, it’s possible to in-house more complicated areas like collection, processing and review all at once.
If you're considering purchasing e-discovery software, download Exterro’s Comprehensive Guide to Buying E-Discovery Software today. It contains valuable advice for in-house legal professionals looking to understand the return on investment and make a solid business case for purchasing it.