In a recent survey conducted by the Compliance, Governance, and Oversight Council (CGOC) and the eDiscovery Reference Model (EDRM), “75% of Global 1,000 companies are vulnerable to fines and sanctions in eDiscovery cases because they fail to keep up with data retention objectives.” In the same study, “85 percent of respondents pointed to cross-departmental collaboration as a key to data retention and many blamed a department other than their own for failing to meet objectives.”
With electronic data growing larger by the minute, knowing your ediscovery program is optimizing processes through a proactive plan to ensure you are prepared for litigation is more important than ever. In the ever-changing, fast-paced world of ediscovery we are living in, it’s vital to ensure your practices are not only cost effective, but defensible and sustainable over time. Reactive protocols and undocumented procedures could cause significant backlash for your corporation, resulting in significant fines and even messier headlines. Making sure your program runs consistently and according to company standards is the best way to ensure savings and repeated efficiency. To best prevent your organization from experiencing the issues highlighted in the survey above, be sure to incorporate the following components into your ediscovery program:
Ensure the right mix of experience across your ediscovery team by establishing the appropriate positions to manage the end-to-end workflow.
- Many organizations have people in place that comprise their ediscovery group, but roles and procedures are often not clearly defined and programs veer off path quickly when litigation hits. Too often, groups get caught up in the onslaught of their discovery work and don’t dedicate enough time to evaluating and updating their program simply because there isn’t enough time in the day.
- Having a third party evaluate your current state and identify the roles, specific to your litigation profile and overall goals, needed to keep your program on track to ensure you are staffed accordingly.
Align your goals and procedures with teams outside of Legal and IT, as they may also be involved in discovery activities and will need to know what process to follow when litigation hits.
- Cross-functional alignment is important to socialize and create, as some groups are not accustomed to frequent litigation requests and, more often than not, there is a lack of collaboration. This deficiency can cause discovery deadlines to be missed, collections to be executed outside of acceptable industry standards, and large “rifts” amongst teams within organizations.
- Forward thinking with consistent collaboration, regular planning, and expectation/goal setting creates an environment amongst teams that allows folks to work together efficiently when discovery demands all hands on deck and in a timely fashion.
Implement legal hold software or a documented internal process to track and monitor holds, custodians, and potential release opportunities.
- Once litigation hits, all matter management begins with issuing legal holds to ensure proper preservation and retention. Ensure the recipients are carefully identified and mechanisms are in place to track recipients and acknowledgements. Reminders of obligations to preserve data should also be part of the matter management procedure.
- A process and periodic review of holds with your Legal team will help avoid potential over-burdensome data remediation concerns in the future when data is no longer required to be on hold. Releasing of legal holds in a timely manner is also vital to avoiding this issue.
Maintain up-to-date practices with efficient procedures and defensible policies that continue to develop with the program over time, while resulting in repeated cost savings.
- When you have standard guidelines documented it makes it easier for teams such as outside counsel and other service providers to rely on you to be consistent on every matter. This will also allow your service provider to act on your behalf or alert the team if something seems to be going in a direction that may not conform to your overall program vision.
- Continually applying first pass data minimization techniques as standard procedures is a simple requirement that will show an overall reduction of the review corpus volumes resulting in document review savings time after time.
Manage periodic review of your current state, policies, and procedures from a third-party to ensure up-to-date practices are part of the program with necessary modifications as your litigation profile changes.
- An important part of a successful and established ediscovery program is to take a step back. Take an in-depth look at the “how” and “what” works within your protocols and program as a whole. When litigation hits, it’s imperative to have a program that can move swiftly and proactively, versus reactively and haphazardly.
If you are able to implement and execute the components above, you will be well on your way to ensuring an efficient proactive approach to ediscovery. If you would like to discuss this topic further or have additional questions, please feel free to reach out to me at firstname.lastname@example.org