Today, e-discovery law and practices are in a continuous state of flux, which underscores the need for corporations to continually evolve in order to meet their ever-changing ESI obligations. International Data Corp.’s (IDC) Vivian Tero recently published a whitepaper, “Leveraging Cloud-Based Delivery Capabilities for Do-It-Yourself (DIY) eDiscovery,” which highlights this very fact, and explains that there are several factors currently driving substantial change in corporate e-discovery approaches. Further, the whitepaper explores emerging e-discovery infrastructure options—including cloud or Software-as-a-Service (SaaS) platforms.
Factors contributing to the changing e-discovery landscape
Most noticeably, there exists aggressive growth in the volume of data that litigants must preserve, collect, analyze and review. Specifically, Tero points to an increase in the proportion of litigants with large matters that average at least 2.5TB per matter. Given this growth in data volume, organizations must have flexible e-discovery systems in place that allow them to easily scale up or down according to the size of different matters, and that allow them to strike the right balance between over-preservation and defensible legal disposition.
Best practices and the necessity of a flexible e-discovery process
The IDC whitepaper further discusses the need for organizations to establish set e-discovery practices and processes that enable information and document management, as well as compliance with preservation obligations, discovery deadlines and chain-of-custody requirements—all while ensuring defensible consistency, security and confidentiality. Policies, business processes and technical protocols should take into consideration a number of factors, including:
- Information management and governance
- Lifecycle management of legal holds and e-discovery process
- Releasing legal holds
- Effective incident response
To mitigate potential challenges regarding retention, legal hold and e-discovery practices, an organization should plan to develop repeatable practices. Defensible consistency, however, must be balanced against constant vigilance to seek areas for effective and cost-efficient improvement, and keep in mind that the e-discovery landscape is constantly evolving by way of new legal requirements and emerging technologies. Amidst constant change in e-discovery, the challenge for most organizations is striking a balance between optimizing internal and external investments in e-discovery process, and improving infrastructure and technical capabilities, but there are methods by which organizations can manage change.
Approaches to manage change by automating e-discovery
There are two different approaches by which an organization can respond to changes in e-discovery by automating core e-discovery processes end to end. The first approach is the “single-vendor platform approach.” In this approach, an organization chooses which stages of the Electronic Discovery Reference Model (EDRM) to conduct internally under a DIY model, depending on the nature of each matter, and employs a single provider to handle the remaining stages of the EDRM with services and/or software. This approach streamlines e-discovery activities and reduces e-discovery costs because data does not have to travel to multiple locations.
The second approach is the “multivendor, multiplatform hybrid approach,” currently used by nearly 65 percent of organizations. An organization typically supports multiple archival and content management systems, as well as multiple geographically distributed IT organizations with complex data segregation mandates. The organization may internally conduct certain stages of the EDRM, depending on the matter, but various vendors and DIY tools complete other stages.
This approach to managing e-discovery, while seemingly flexible and multifaceted, in practice is more often inefficient and inconsistent. The majority of these multivendor e-discovery architectures are the outcomes of business and IT organizational developments such as mergers and acquisitions, changes in IT strategies, and siloed and reactive purchases of ad hoc technologies.
Selecting the appropriate e-discovery infrastructure
As Tero notes, given the myriad of available e-discovery infrastructure options, organizations should scrutinize their options carefully—looking at e-discovery services, on-premise software and cloud or SaaS platforms (where data is remotely hosted by a third party provider and accessed by the legal team through secure web technology). Selection of the appropriate infrastructure approach—or combination of approaches—is influenced by many factors, including the organization’s litigation profile, the organization’s existing IT capability and long-term IT architecture strategy, as well as the business and technical attitudes of the outside provider. E-discovery cloud or SaaS platforms transform upfront capital investment into monthly variable expense and could potentially deliver lower total cost of ownership, given that the remotely hosted platform requires no additional internal hardware, software or IT support resources.
With the constantly evolving landscape of e-discovery service providers and software tools, organizations need to continuously engage in a strategic assessment of their e-discovery practices and DIY infrastructure needs. In the end, the goal is to efficiently conduct information and document management, meet preservation requirements and discovery deadlines, and ensure data security and chain-of-custody documentation. With more options than ever before, this goal is within reach.