eDiscovery: Turn crisis into opportunity with optimized solutions

A damaged reputation, adverse inference rulings, fines, sanctions—the high costs of eDiscovery to your business can be more than just financial. Third-party legal vendors have helped to mitigate risk in the past, but at a price and with many disadvantages. As a result, progressive organizations are now moving their eDiscovery solutions in-house as well as reducing and preventing content issues before legal discovery orders occur. Through automated applications and proper planning, in-house eDiscovery solutions can avoid common pitfalls and improve overall content management practices across the company.

Tackling the challenges of legal discovery and risk

In the past few years, many companies have faced increased litigation and regulation. The risks associated with discovery are numerous, as are the reasons they occur. Discovery orders cause some of the most serious legal issues, and, on top of any penalties assigned by the courts, companies also suffer from the resulting damage to reputation and business performance. Unfortunately, complying with eDiscovery orders is time-consuming and usually the source of a company's largest and least predictable expenses. Unprepared, many companies often find themselves unable to locate the required evidence, not locating it in time, or learning too late that they could have safely disposed of evidence now being used against them.

Attempts by companies to practice one-size-fits-all company-wide policies have created their own problems: Keeping all information permanently causes an ever-increasing volume of content that becomes more and more expensive to maintain and to comb through when the time comes for eDiscovery. Destroying all information after a short period of time can lead to the accidental deletion of business-critical information, spoliation, and employees maintaining separate, unmonitored content repositories.

Until recently, in order to deal with information in a more nuanced manner and ensure compliance with often byzantine regulations, third-party legal vendors have often been employed, but they are expensive. In addition, leaving eDiscovery solutions to a third party means that there is no one within the company to regulate the growth of uncontrolled, unstructured information, exacerbating the expense of using these vendors. Many companies are now seeking to in-source the tasks usually left to third-party vendors, such as placing litigation holds, collecting information, and processing it for review. In addition, many companies recognize the value in automating and combining these tasks in one application.

The blueprint for an optimized eDiscovery solution

Moving the eDiscovery solutions in-house can help ease some of the risk associated with eDiscovery and the financial burden of using a third party, but, if not properly implemented and managed, they can cause many problems of their own. Poor collaboration among departments can create an incoherent implementation if the solution is not properly planned for. IT is often unfamiliar with and untrained in the legal end of eDiscovery, and so will have difficulty understanding exactly what they should be keeping, deleting, or looking for. Legal will struggle with the technical aspects as well as understanding the difficulties that IT may have in fulfilling their requests. Finally, the end users may not fully appreciate the goals that the company is trying to accomplish. Using an in-house solution without the appropriate tools can also drain IT resources. Many of these issues can be avoided through careful planning before implementation and by selecting the appropriate tools for the job.

One frequently skipped but important aspect of an eDiscovery solution is encouraging communication among departments. The entire organization needs to understand the value of the new eDiscovery solution and how different departments can work together to achieve success. The policies for collecting the information also need to be communicated to the end users so that they understand the value of the application and the overall eDiscovery process. Additionally, the system needs to be easy for users to access in order to quickly retrieve necessary information, since eDiscovery is so often time-sensitive for the court.

Another part of the planning for eDiscovery involves making it part of an overarching content management strategy for your organization. Even with successful implementation of new policies, unstructured and legacy content remains to be organized and classified in order to determine what should be held or deleted. Proper tools for content management and a strategy for dealing with it can help streamline the content volume, organize unstructured content and apply metadata for easing searching, and store legacy content in accessible formats regardless of its original system.

The onus is now on companies to both preserve and be able to quickly access electronic records whenever litigation can reasonably be expected. In this case, the ability to quickly call for a legal hold is another advantage of a well-managed in-house eDiscovery solution. One of the features to check for in an eDiscovery application is its ability to create a centralized solution that can find and assess information across disparate resources and systems. The advantages of these features include improved speed and the ease with which companies can perform early case assessment, followed by the ability to automatically place a hold on the needed records as they are discovered.

eDiscovery: Tailor-made for your business

The eDiscovery solution itself must be carefully chosen to suit the organization's aims. It is important to ensure a coherent system that can cover all content, regardless of where it is in the company or what format it's in, in order to ensure that the correct information is stored instead of accidentally destroyed. The issue of resources can be dealt with by automating the time-consuming tasks of data collection, classification, searching, processing, metadata extraction, and so on-largely taking the problem out of IT's hands. The time saved by having all these tasks performed by one application gives legal counsel an earlier opportunity to perform their case assessment, and the organization more preparation time for a case-all coupled with a certainty of meeting eDiscovery requests.

Properly planned for and implemented, in-sourced eDiscovery solutions can speed up the legal discovery process, simultaneously reducing both risk and the cost of collecting, processing, and reviewing content for a case. eDiscovery applications offered by enterprise content management providers, such as Open Text, can free up company time and resources by automating many of the processes involved in eDiscovery long before it's required by the courts as well as reduce and organize the company's overall content. Rather than leave eDiscovery as an expensive and unpredictable crisis-management situation, preventative measures and automated applications can help companies demonstrate their good-faith compliance in court when the time comes.

Walkthrough points

• Increasing regulations and high discovery costs make manual processes unsustainable
• Progressive organizations are moving eDiscovery processes in-house
• Businesses need a single, automated system for addressing the demands of legal discovery without the high costs typically associated with locating and reviewing content in response to discovery orders
• Enterprise content management solutions for eDiscovery, such as those offered by Open Text, accelerate the process of discovery compliance and streamline content volume to reduce risk and costs