Internal Assessments

Read the May 2011 e-discovery feature, "Keeping Up With Evolving E-Discovery."

Many companies opt for a blended approach to e-discovery. Why is this popular? How can corporate legal teams "sell" this approach to executives?

This is a popular approach mostly out of necessity. Trying to handle all aspects of e-discovery in-house can be daunting, complicated and expensive. The balance a particular in-house group achieves is based on case/investigative demands, the nature of internal systems and data types, size and type of in-house legal staff and cross-functional teams, as well as the company's working relationship with outside counsel and vendors.

The benefits of a split approach can be many--assuming it is set up in an efficient manner based on specific needs and metrics supporting such a structure (the key to getting executive buy-in). If done right, in-house groups not only realize significant cost savings and time efficiency, but a split structure can also allow for better transparency between in-house and outside counsel and provide an avenue to stronger matter knowledge management over the long term.

Once an in-house group masters processes in one area, there are often opportunities to bring additional aspects of e-discovery inside--here again, providing metrics in support of the benefit versus expense/hardship will help drive decisions for executives. For instance, many in-house groups make the decision to leverage internal expertise about systems and data by controlling data management and reuse at the front end of the process in order to reduce the overall corpus and gain critical transparency into the documents prior to exporting to e-discovery vendors for additional processing, review or production. Even in instances where the work may not be conducted in-house--such as attorney review--in-house groups can still influence the cost and efficiency of the process.

As always, in-house teams must work with outside counsel to ensure all aspects of the in-house strategy are reasonable and legally defensible. Early and ongoing collaboration with outside counsel, and vendors to the extent necessary, will help in-house teams at the outset, during cases and also as they continue to assess additional ways to reduce cost and increase efficiency in this area.

Why are metrics such a vital aspect of initiating and maintaining in-house e-discovery?

Whether an in-house group prefers a split approach or some other, including up to a complete vendor-managed service via a law firm or e-discovery vendor, providing the specific metrics in support of an approach remains the most important thing to securing requisite executive buy-in.

Tracking metrics in this space can be daunting. For example, in instances where numerous outside counsel control e-discovery with varying processes and vendors, cost tends to skyrocket, and metrics, if kept, are rarely kept consistently by the different firms. That said, even small in-house teams can get useful metrics necessary by using representative case examples or gathering a specific set of basic metrics from outside counsel and vendors over a certain time period.

The important thing is to begin somewhere and take a reasonable approach to solving a particular e-discovery problem in-house, conduct a cost-benefit analysis against that process and have outside counsel weigh in on defensibility. Even if slow, progress will be made.

What challenges might a company face when first bringing e-discovery in-house?

The most critical challenges are having executive sponsorship of the internal e-discovery initiatives and finding the right team to both envision and lead the effort.

The discovery counsel role has three main components: great legal judgment, technical acumen and a process/workflow mindset. Specialized e-discovery project managers are essential in managing the data and other "in the weeds" processes both internally and with vendors. Developing the right cross-functional teams from legal, IT and other essential business units is vital to think through all aspects of challenges, communicate technical and/or difficult processes effectively and make appropriate recommendations.

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