How to create a corporate e-discovery readiness program (Part 5)

A corporation may build e-discovery product bench strength with the right technology assessment plan

It should come as no surprise that the technologies used to support e-discovery projects are a key component of an e-discovery readiness program. In this article, we will address considerations for selecting the appropriate products and the decisions that may drive the deployment of technology in e-discovery projects.

If you’ve not had the pleasure of a conference Gauntlet, you have missed a half-thousand e-discovery product sales teams that want to make your acquaintance. Don’t despair, the persistent hundred will find you. And the others will be bought by those hundred next year anyway. If you did venture through, wearing your badge and bravely seeking the latest and greatest, you may have since established a vendor response protocol with your assistant and discovered your spam filter.

Rest assured, there are many quality products and product representatives qualified to advise on the strengths of their tools for e-discovery. Technology assessment and investment decisions, however, are typically not in the wheelhouse of corporate counsel. As many an in-house department have learned in great frustration in the past several years, you rarely buy what you were sold and nothing (repeat, nothing) does it all well. Effective technology planning recommends a close partnership with Technology and consideration of Information Security, as well as contributions by the engineering and operational teams who will ultimately be responsible for project performance.

A corporation may build e-discovery product bench strength with the right technology assessment plan. A technology assessment may include some or all project model tasks, define required functionality, and match those requirements to currently available or new technology products. Previous articles in this series have addressed in-sourcing and external service provider opportunities, as well as the continuous improvement cycle and PIVOT process for e-discovery program refinement. Regardless of the maturity of the program, increasing volumes of work and new technology innovations recommend counsel consider a technology efficiency assessment on a periodic basis.

Most corporations neither need nor are in a position to buy every leading tool. The technology portfolio of preferred providers may be an important consideration for e-discovery programs that seek flexibility in their project technology. Application service (cloud or “hosting”) providers who deliver a wide-range of modern tools in secure environments may be cost-effective or process-efficient solutions (and sometimes both) for some corporations. Often, the near-instant availability of hosted solutions, as well as the opportunity to avoid infrastructure and technology support expense, can be compelling for corporate programs. Some corporations, on the other hand, have strong preferences for on-premise technology and hosted solutions may not be approved for protected content. As a corporate e-discovery program matures, strategic decisions can be made to better leverage the strengths of specific technology and source appropriately.

A corporation is well served by first examining the current enterprise application technology portfolio to identify existing tools that meet e-discovery project requirements in order to avoid redundant spending. It is not uncommon for corporations to have functionality currently deployed that can be applied creatively to discrete e-discovery tasks, including preservation, collection, matter and project management, e-notice and ticket-tracking, asset management and device discovery, OCR, data warehouses and digital forensics tools. Many corporations also have enterprise licensing in place with current providers who can therefore more economically bolt-on or throw-in all or some of their e-discovery technology.

If new technology needs to be assessed for sourcing, requirements may be rated as required (must have) or desired (nice to have). Product attributes above those requirements can be identified as bonus (not-required). Information security and data services personnel may advise on technical requirements and functional considerations for either hosted or on-premise solutions. It can also be helpful to poll existing counsel, audit and investigative advisors to solicit opinions as to the best-in-breed technology — that they believe may be best suited to meet the needs of the organization and for which phase of the e-discovery project lifecycle. Litigation counsel can be helpful in defining preferences for certain document review functionality, for example, and provide a “short list” of products they have used efficiently.

Once the technical and functionality requirements are defined, the sourcing process generally begins with a request for proposal (RFP) to select companies. The RFP typically includes the itemization of the requirements and necessitates that the responding company assess its technology against the requirements and to respond in a uniform manner, thereby enabling a comparison between products. Companies scoring highly in response to the RFP may be invited to present to a selection committee that grades each product on its respective ability to meet requirements.

On the more tactical, project-specific product selections, it is important to understand which process and technology combinations may work most efficiently for the project. The intelligent deployment of people, process and product converge when the right technology is married to a competent user, performing a process the tech was designed and optimized to handle. For example, data types such as email may be soloed for processing and review, so that an analytics tool that performs exceptionally well against message metadata can be applied successfully and review processes optimized. Automated regex redaction and propagated redactions are similarly best performed by certain technologies within a defined protocol.

Ultimately, it may be helpful to visually present the results of the product assessments via a series of matrices or quadrants that visually represent the role(s) and qualification(s) of each technology. The product matrix may be linked to specific lifecycle phases, as may be illustrated in the e-discovery program roadmap. It could also be worthwhile to chart specific benchmarked performances; for example, data volumes and through-put/velocities on a specific task, historical recall and precision rates, or compatibility/interoperability between products.

Contributing Author

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Bobbi Basile

Bobbi Basile brings nearly 25 years of experience in the legal and records management industries, delivering strategic operations and technology services to Fortune 500 legal...

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Susan Nielsen Hammond

Susan Nielsen Hammond is AGC, SVP of Records Administration, e-discovery and Forensics for Regions Financial Corporation.

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Contributing Author

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Amor A. Esteban

As a partner of Shook, Hardy & Bacon L.L.P., Amor’s expertise in e-discovery, records and information management and data privacy is widely known. In...

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