E-Discovery: The Importance of Taking Proactive Steps

The first of a six-part series on e-dDiscovery from the Taneja Group .

There is an old story about three men with bad eyesight trying to describe an elephant by touch. The one feeling the trunk insists the animal is long and narrow and flexible. The one examining the foot claims it is made from horn and is squat. The one examining the ear insists it is floppy and wide like sail. A bitter argument ensues and the men never do figure it out.

Understanding e-discovery is a lot like that elephant, who was all of those things the men were insisting upon and more. Moving back and seeing the e-discovery elephant in perspective -- rather than a myopic insistence on some of its parts -- is the key to understanding it. And understand it you must, or risk being knocked down by the surging wave of data and strict new requirements surrounding data discovery.

This series, written by research firm Taneja Group, aims to help attorneys, storage admins, and IT managers better understand the world of litigation e-discovery. It will break down the e-discovery workflow into five major categories of classification, collection, preservation, review, and production. It will then talk about how the workflow between elements benefits the process from beginning to end, and what buying e-discovery platforms and tools should accomplish for e-discovery purchasers.

What is Litigation E-Discovery?Most e-discovery stakeholders are the equivalent of those near-sighted men trying to describe the elephant: thinking of e-discovery as narrow parts instead of a whole. For example, an attorney thinks about e-discovery purely in terms of review, having no idea that e-discovery spans the entire litigation workflow. A paralegal thinks of e-discovery purely as an email search, and has no idea that e-discovery applications cover fileshares, databases, content management systems, and more. An IT professional may relegate e-discovery to a legal tool and not have any idea how it impacts the storage infrastructure. These limiting views doom would-be e-discovery users to buying inadequate e-discovery applications or boutique products that fill just a fraction of the real e-discovery need.

Here is how Taneja Group defines litigation e-discovery: "E-discovery is the process of classifying, collecting, preserving, reviewing, and producing electronic data in response to a discovery request."

This process used to be entirely manual, but huge data volumes and the federal rules of civil procedure (FRCP) mandated schedules have made that functionally impossible. Now a combination of human interaction with e-discovery software tools retains attorney and IT expertise while automating as much of the painful e-discovery process as possible. This sea change in the legal discovery process has proven a difficult one for many companies. But there is no going back to the good old days of finite information sources, strategic discovery delays, and throwing more bodies at the problem -- not with a single case presenting Terabytes of digital information to cull, review, and produce.

A single e-discovery action can easily involve many millions of documents, and human effort to review this volume of information is a fool's game -- not to mention impossibly expensive. It is absolutely necessary to employ e-discovery technology tools that will take on the task that human effort can no longer do.

The venerable American Bar Association estimates that in civil litigation, 90 percent of discovery targets are now electronic. Digital data is everywhere: databases, email, office applications documents like word processing, spreadsheets, and presentations, calendar files, audio files, Websites -- the list is long and growing.This makes searching, reviewing, and producing millions of documents a year extremely resource-intensive and keeps armies of attorneys gainfully employed in corporations and law firms. In turn, the review of electronically stored information in the course of litigation costs most corporations many thousands of dollars an hour.

The Question of Reactivity

When it comes to traditional litigation, a reactive approach used to work wonders. Entire cases have been won largely by wearing down the opposing party through strategic delays and taking minimal action only when absolutely required. (Federal Judge David Baker referred to the phenomenon as "purposeful sluggishness.")

However, the FRCP and impatience judges have turned this time-honored practice into court judgments and sanctions. Doing a poor job at e-discovery, and taking too long to do it, is an expensive procedure and, at worst, an even more costly failure. The e-discovery problem is not limited to a culture of reactivity and strategic delay among experienced attorneys, but also the very real costs associated with manual, widescale search, collection, protection, review, and production of electronically stored information (ESI).

This is where e-discovery technology comes in. By proactively automating the e-discovery workflow, attorneys can automate collection and the litigation-hold process, and can review according to de-duplicated and prioritized results. This is what allows attorneys to effectively apply e-dDiscovery to the realities of massive amounts of ESI. But it is important that this procedure is applied before the lawsuit comes down the pike. Proactive e-discovery is the responsibility of the corporation so that it can present an already indexed and sensible map of ESI to in-house and outside counsel. Next Page.

Now more than ever it is important for IT to be involved in the purchasing decision. Attorneys need to work with IT to champion proactive eDiscovery purchase and employment. Even when outside counsel is faced with a poorly planned eDiscovery infrastructure on a client's part, this is a good time to have already partnered with an eDiscovery platform vendor as a competitive differentiation.

Tech managers will also need to evaluate the eDiscovery platform's fit for the computing environment. eDiscovery classifies and initiates action across the storage infrastructure, but there are architectural differences. IT also will be able to do the necessary work of evaluating performance and scalability in an eDiscovery workflow technology. Since there is no single eDiscovery platform that accomplishes all this today, IT must help to choose the integrated components that make up the eDiscovery workflow.

In fact, IT has two major opportunities to benefit themselves and their company when choosing eDiscovery tools. The short-term accomplishment is to work hand-in-hand with the legal department to understand and educate -- to understand the legal team's real needs in litigation events, and to educate them about what is possible and optimal for the company as a whole. This is why IT should be looking at comprehensive eDiscovery platforms that integrate tools to crawl all data sources throughout the enterprise, index findings for proactive eDiscovery now and to come, issue litigation holds, analyze and present results, and produce relevant data in a variety of formats.

Choices abound, not only between products and but also among eDiscovery elements that are hosted or handled in-house, or a combination of the two. For example, the hosted eDiscovery model enables off-site vendors to host customer data in secure repositories and employ eDiscovery procedures on the hosted data. By subscribing to hosted eDiscovery, companies can retain their legal staff while off-loading resource-intensive eDiscovery workflow to the hosted service provider. And there are many choices. Discovery Mining Inc. , for example, provides hosted eDiscovery for Interwoven Inc. 's clients, CaseCentral targets corporate legal departments and law firms with their hosted model, and Zantaz Inc. provides Digital Safe for Autonomy Corp. 's hosted clients.Long-term, the same eDiscovery platforms that transform the litigation workflow can also transform compliance, internal governance, data security, and data management. This is a huge opportunity for IT to discover eDiscovery tools not only for litigation, but also for a much more expansive role in managing data throughout the enterprise.

The eDiscovery workflow is necessary for today's discovery realities -- but it is complex. Creating an uninterrupted electronic flow of information through the whole process is critical. Before we launch into details on each of these workflow points, let's talk about the litigation eDiscovery workflow itself.

eDiscovery workflow is particularly challenging both because of its numerous steps and the strict structure those steps must take for compliance with FRCP. This complex business process used to be done manually, perhaps using a few niche software tools like those for legal review or document production. Now that FRCP regulations and hugely growing data stores have made eDiscovery so unwieldy, companies need eDiscovery platforms and specialized products to integrate this complex workflow. Growing vendor integration and partnerships promise to further simplify this process.

Proving steps in the workflow is also important. eDiscovery tools are capable of tracking discovered documents by a variety of parameters, including the individuals involved at various stages of the eDiscovery. For example, the software must identify the person who issued a search query, the one who initiated a new index in a data repository, and the one who ordered document production, and it must also track the access and rights of the various individuals. Manually tracking this data for large-scale discovery efforts is simply not possible.

There are several ways to break out litigation eDiscovery workflow, ranging from simple to deeply detailed. In this series, we break down the litigation eDiscovery process into five primary parts: 1) preparation, 2) collection, 3) preservation, 4) review, and 5) production.Next, the first step in the eDiscovery workflow: Preparation.

Christine Taylor is an analyst with Taneja Group , which provides research and analysis to the storage, server, and knowledge management industries.