The e-discovery maturity model

How litigants can adopt a proactive posture to achieve information governance

H.G. Wells once wrote, “There are truths you have to grow into.” This is certainly the way of e-discovery. An organization doesn’t simply decide one day to become proficient at the complex, multi-phased and cross-functional process of e-discovery. Instead, it achieves maturity via matriculation, which likely involves a number of chaotic and painful brushes with near disaster.

While experience is undoubtedly a great teacher, there have recently emerged a few useful “maturity” models in the e-discovery space. One early version was published by the Electronic Discovery Reference Model (EDRM) and focused on a range of process categories, including focus, strategy, expertise and cost. The lowest maturity level is aptly named Chaotic.  The next levels are Managed, Standardized and then Semi-integrated. The pinnacle of e-discovery enlightenment is Integrated and Optimized.

Oddly, the EDRM maturity model hasn’t received a significant amount of traction. Perhaps it’s that entities don’t want to face the reality that their existing processes are mired in the “chaotic” realm. Or, it may be that many organizations simply can’t get far enough removed from their latest “hair on fire” situation to gain any perspective on the painful event that just occurred.

Despite the initial lukewarm adoption, others have recently jumped into the maturity model fray. The Enterprise Strategy Group (ESG) is a leading analyst firm focusing on information governance and they’ve recently taken another stab at an e-discovery maturity framework. Interestingly, their approach focuses more on the enabling technologies and as such is ostensibly more tangible for most organizations.

Their model seems to resonate with the saying, “Where you stand depends on where you sit.” In other words, an organization’s litigation profile will often dictate where they should be situated on the technology maturity scale. Needless to say, this framework is a bit idealistic and for many will be a future state they should be ideally targeting.  Here are the three levels of e-discovery maturity according to the ESG model:

 

1. First time litigants

Many in this relatively naïve e-discovery camp simply haven’t been through enough battles to develop a plan of how to attack e-discovery systematically. They’re often in a purely knee-jerk mode and, consistent with the ESG model, “seek immediate reactive cost relief and tactical process automation.” The “first-time” nature of this category doesn’t need to be taken literally, with the point being that litigation for these companies is typically episodic and unpredictable at best. When faced with a semi-isolated litigation (or governmental inquiry) event, these entities will often rely heavily on outside counsel, which is typically a safe choice. Outside counsel are often in a good position to coach these neophytes through the riskier parts of the EDRM process and should ideally help to keep missteps and chaos to a minimum.

The challenge to this convenient model is that it’s often the most costly way to conduct e-discovery. Initially, it staffs outside counsel in most every role, from crafting the preservation plan to supervising collections, and ultimately to managing the most expensive phase of e-discovery, the review process. The expenses for the last phase are particularly staggering, with an average cost of $18,000 per gigabyte of data reviewed. Even the smallest organizations may have matters as big as a terabyte, or 1,000 gigabytes, where the review costs alone can easily and quickly escalate into millions of dollars.

Interestingly, some of these “first time” organizations will bypass counsel when they get sticker shock from the combination of attorney fees and external vendor costs. Motivated by the opportunity for cost savings, they will quickly find that they can purchase e-discovery solutions for a price that’s less than external processing costs. According to the ESG model, many of the companies in this camp will orient their efforts around the core of the EDRM model (processing, analysis and review) since these phases are the most costly elements of e-discovery. Review, in fact, commandeers a massive 73 percent of every e-discovery dollar due to the high costs of the manual attorney review process. Here, even modest efforts at data culling and early case assessment (ECA) can generate huge, demonstrable return on investment, which obviously makes procuring the technology tools that much easier.

“Investing tactically in e-discovery technology to cull information can significantly reduce other downstream e-discovery costs, including external document-review expenses. Filtering irrelevant data and pre-tagging it in-house can cull evidence down to its most responsive kernel before passing it to outside counsel for review. Thirty-five percent of corporate counsel surveyed by ESG had the goal of culling data prior to document review.” - ESG’s Whitepaper, “Actionable E-discovery At Any Stage: Flexible Solutions from Symantec.”

 

2.  Repeat litigants

The feature that identifies many repeat litigants as they mature is the desire to become more proactive, particularly in response to the chaos that is endemic with a purely reactive posture. Dealing with multiple, often simultaneous, matters means that achieving a scalable process becomes a critical mission. To do so, serial litigants with repetitive e-discovery requests have additional requirements, often because they’re attempting to in-source additional elements of e-discovery such as identification, collection, and preservation.

In this scenario, many companies attempt to get ahead of the curve by establishing better data management hygiene, often in the form of information archives, which have long since expanded beyond their original email-centric use. Current archives capture data from network shared drives, Microsoft Office 365, Microsoft SharePoint, IBM Lotus Domino, BlackBerry, instant messages and social media such as Facebook, Twitter and LinkedIn.

As the ESG whitepaper says, “proactively storing data in an archive simplifies searching during investigations and can ease retrieval with proper production capabilities. Many repeat litigants use e-mail archives for preservation and collection—63 percent of corporate counsel surveyed by ESG do so currently, while 21 percent plan to in the next two years. The use of archives can also secure evidence for legal hold centrally by enforcing retention.”

In addition to the benefits of taking the core elements of the EDRM in-house, proactive players typically are able to simplify the search and collection of pre-archived data and preserve evidence in multiple data formats under a centralized legal hold to ensure physical security while deduplicating data to minimize volume. All of these upstream steps help to reduce the data volumes that will end up in the downstream review process, enabling significant cost savings to inure for each and every matter.

3. Serial litigants

According to the ESG model, these lucky corporate entities need to go beyond simply being proactive with their data management and will embrace a larger information governance regime since litigation is a daily fact of life. These often highly-regulated companies, such as pharmaceuticals and financial services, need a solution that will have a broader positive impact on their overall risk profile, their e-discovery effectiveness and, ultimately, their bottom line. This is where broader information governance comes into play. “Information governance encompasses the technology and practices involved in actively managing what data is retained in the enterprise, where and for how long it is stored, how it is protected, and who has rights to access it,” the whitepaper reads. “Whether for e-discovery readiness, compliance, data protection, or general information management, a comprehensive information governance policy is beneficial for searching, protecting, classifying, storing, retaining, and expiring data.”

Conclusion

Maturity in e-discovery is often gained by trial and error. But, in order to really make strides, organizations need to conduct some level of introspection to see where they rank on an e-discovery maturity spectrum. Once that evaluation process begins, there are frameworks and enabling technologies that will solidify and accelerate ongoing maturation. This e-discovery maturity won’t simply happen organically. Instead, savvy organizations need to embrace a proactive perspective and gradually adopt frameworks like information governance to truly mature. Fortunately, the benefits are legion, with significant risk reduction and measurable return on investment leading the way.

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Dean Gonsowski

A former litigator, general counsel and associate general counsel, Dean Gonsowski is the global head of information governance at Recommind and has more than 15...

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