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.

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.”

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.”

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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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