Many in-house legal professionals face the "make or buy" decision every day: which matters or parts of matters will they handle in-house, and which matters will they seek external assistance on. Decisions often include assessing risk, magnitude, impact, talent and staffing mix (internal and external), required response time, availability of tools and technology, desire for efficiency and consistency, and cost effectiveness. Depending on the matter and jurisdiction, privilege and defensibility considerations may also be part of the risk and overall decision matrix.
Companies in heavily regulated industries often have dedicated in-house resources for handling portions of their e-discovery workflow. Roles can range from serving as touch points within the company to performing (or managing) end-to-end e-discovery in-house.
Striking the right balance is key, and the right answer on approach will likely vary from company to company.
Five Key Considerations
For those companies interested in exploring technology options to assist with performing the collections portion of the e-discovery workflow in-house, key considerations include:
- Data sources: what are they and where do they reside
- Identify right tool for right job: matching data sources to tool capabilities
- Integration and data security: how will the technology integrate with other systems and meet security requirements
- Subject matter expert: who will own and defend the process
- Proof of concept and support: testing capabilities and ongoing support are critical elements to move from concept to implementation and execution
Technology and tools abound when it comes to e-discovery. It can be daunting to navigate the complex marketplace to determine which tools best match a company's situation. A key first step is to understand the company's data sources and determine where they reside. With this understanding, companies can then prioritize needs, develop a collections strategy, and identify tools to best match their needs.
Questions to ask include:
- What are the company's data sources?
- What types of repositories or devices are you collecting from (e.g., email, document management systems, SharePoint sites, company-hosted social media, cloud storage, server shares, iPads, smartphones, etc.)?
- Which repositories or devices are you most commonly going to for data collection?
- Are collections mainly inside or outside of the U.S?
- From past experience, can you prioritize among data sources and repositories to help focus on which tool(s) might best be suited to address collection needs?
Right Tool for the Right Job
In addition to understanding the data sources and common repositories for data, it is also important to understand what the company's collections strategy will be. Will the company seek to collect everything? Will the company seek to use search terms and/or to collect in a more focused way?
Also, important to consider is the company's desired collections capabilities, including whether the collection most often needs to be:
- Forensically sound: copied files are exact matches and metadata values don't change; can authenticate
- Forensic image: bit-for-bit copy of a hard drive or server disk (bit-by-bit copy of a hard drive which will collect slack and fragmented disk space)
- Targeted collection: using key words, dates, certain file/folder locations
- Self-collection: conducted by the custodian; can be riskier, raising assertions of “fox guarding the hen house”
As with any situation where tools are matched to task, understanding what the company most frequently wants and needs will help the company focus on which tool makes the most sense.
Consider how the technology will integrate with the company's systems and data security measures so that information that needs to be collected can be collected using the tool. Ask questions about how the technology interfaces with existing technology systems, and understand any limitations or special measures that may need to be implemented.
Some questions to consider include:
- Will the new tool be able to plug into the company's various IT systems and platforms?
- Are there data types or areas within the company's information systems that are highly protected and secure, and can the collections technology traverse those areas?
- Does the company have a dedicated and secure storage area for collected data?
- How will back-up practices be implemented or apply?
- Will collections practices be integrated with broader information governance practices?
Subject Matter Experts
In addition to technology considerations, there are also people considerations. Consider the increased demands on human capital when bringing collections workflow processes in-house, and plan for them. An e-discovery collections playbook that identifies who uses the system, who is responsible for what aspects of the system, and key steps in the collections process can help bring consistency and accountability, and help enhance defensibility of the process. Also consider the potential need for an external partner who is familiar with the in-house systems that can supplement the collection staffing needs at times of high demand.
Another important consideration as part of the company's efforts to manage the collections workflow in-house is selecting the "subject matter expert," or in-house professional who will own and defend the process. This person may potentially be called upon as a 30(b)(6) witness, and should be someone who understands the in-house collection process as well as the company's infrastructure, information technology assets and security.
Proof of Concept and Support
Ask for the opportunity to test and evaluate. Will the tool function as promised and do what you need it to do? Ask about customer support, for the integration phase and beyond, and confirm that it meets your needs and expectations. Validate the test results.
In addition, identify in-house resources who will partner with the technology vendor's customer support. Ensure that key in-house players receive training on the technology and e-discovery collections playbook.
Bringing the collections portion of the e-discovery workflow in-house can be very empowering, and can result in efficiencies and cost savings. Selecting the technology tool that best suits the company's needs is an important part of the process. The above considerations highlight some key things to consider; as with any new technology selection, implementation and roll-out, there are many additional factors to consider as well.
At a minimum, know your data and systems, understand the sources you typically need to collect from, assess how various technology options will integrate with your company's systems and best help you execute on your company's collections strategies, and consider the people issues. Integrate policies and practices with broader corporate information governance practices, and communicate and train people on them to help best position the company to succeed in implementing defensible in-house collections strategies.