Dragging IT Into the eDiscovery Fold

I frequently take briefings from storage vendors who are involved in eDiscovery and compliance. This frankly means most of them. Witness EMC with its partnerships (StoredIQ, Clearwell, others); CommVault's early partnership between Simpana and CaseCentral; and Mimosa's mature eDiscovery and compliance add-ons. IBM is in the act too primarily around its own ECM and data warehouses, and we will see much more activity this year as the Tier 1 and 2 storage players glom onto eDiscovery and compliance as profitable areas.

It is the advent of the storage players into eDiscovery that might finally ease the way for IT and the lawyers and compliance officers to understand each other. Because IT is comfortable with the storage vendors, multi-vendor sales teams can relate to all three stakeholders in a way that pure eDiscovery players rarely do.

The lawyers have always needed IT, if nothing else than to search backup tapes and possibly de-dupe the data sets for review. But with eDiscovery changing so quickly, Legal needs IT -- even if neither of them knows it yet.

At a minimum, the corporation needs to have eDiscovery-related software tools in place for a) automatically discovering potentially relevant documents across a wide variety of search terms and metadata and b) a way of holding relevant data where it cannot be deleted or modified until the hold is lifted. These procedures may be minimal, but they are foundational to legally defensible and cost-effective eDiscovery. These tools require both IT and Legal involvement: Legal is responsible for inputting the searches and establishing hold parameters, while IT is responsible for deploying the collection and hold applications across multiple networks and storage targets.

Beyond this minimum technology deployment, here is what I see as basic best practices for corporate eDiscovery:

-- Analyze corporate Legal's eDiscovery practices for risk and resource usage. For example, all too many corporate lawyers practice "litigation holds" by sending out mass emails directing data custodians to preserve their files. This isn't litigation hold; it's a recipe for disaster.

-- Build cross-functional teams of Legal, Compliance and IT to define improvements to the process. These teams are charged with searching out eDiscovery services and technology that will automate eDiscovery procedures.

-- Adopt technology to automate the crucial collection procedure: identify, collect, preserve, analyze, and process relevant data. The better the job the corporation does here, the more efficiently it will manage all of its matters.

--Insist that outside law firms or hosted eDiscovery providers track and justify eDiscovery procedures and expenses. Some corporations may require their outside law firms to use a single eDiscovery workflow management platform to manage their matters.

There are technologies and services available to help with each of these steps. The ROI around automating these procedures is very high but the corporation must have the budget and the will to accomplish it. Better to do it proactively than in response to a devastating series of legal losses.