eDiscovery: why you should keep control over your data!

Posted on January 11, 2013

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The discovery process involves the gathering and management of information that supports some or all phases of a business process, such as fraud investigations, financial auditing, research and development activities and more. The concept of discovery, however, is probably most associated with the legal industry. In this context, discovery is the pre-trial phase of a lawsuit in which each involved party can, through the law of civil procedure, request documents and other evidence from third parties.

As a result, if the time should come when an organization gets sued,  it is likely that they will jump into rapid reaction mode, immediately running to hire external bureaus or legal teams to help meet discovery obligations. At that precise moment, not only does the (money) meter start running at an accelerated pace, but normal business processes get disturbed, management and employees get distracted and normal cash flow is compromised.

An independent survey of corporate legal departments, completed in 2008, showed that even then, two thirds of the respondents wanted a (e-discovery) system that was “soup to nuts,” i.e. that took them from data preservation and collection all the way through production.

Discovery for many companies means high cost without the assurance of high levels of accuracy and efficiency. The root of the problems discussed here—and the main reason that pre-trial costs often go through the roof—is that most organizations have no overriding concept or supporting structure in place to define and manage the relevant information that could be vital to their defense during litigation proceedings.

When information gathering and preliminary analysis start from ground zero, organizations are more prone to try and settle the case out of court, before the discovery phase. Even though it can feel like extortion, organizations often prefer to just swallow their pride and pay the high cost of a settlement because it is perceived to cost less than the anticipated cost and hassle of a full discovery and legal review.

In the last few years, a variety of affordable, straightforward, start-to-end solutions have become available that take the mystery out of e-discovery processes. The right system, combined with proper professional services, defensible methodology and templates for reporting, can enable the brunt of e-discovery work to now be performed in-house. Understanding the obligations under eDiscovery and eDisclosure best-practices and regulations have matured, as well as technological solutions. We no longer need to worry about a lack of knowledge, about a system’s full price/value relationship; about unfamiliarity with the full scope of relevant regulations; about concerns about extended liability; and fear of procedural missteps.

Today, there is really no reason why your organization should not keep 100% control over your data in the case of eDiscovery. You can buy a full in-house system to identify, collect, process, analyze, review and produce your data or you can rent or lease software and storage capacity to manage and share your eDiscovery data in a (private) cloud or SaaS solution. The software, hardware and professional services are all there. These days, in-house and SaaS eDiscovery systems can do anything a specialized service bureau or service provider can do, from advanced data processing, to audio search, technology assisted review, legal production and automatic redaction.

By using VPN and other secure technology, you can provide your external legal and support advisors access to your data in order to review and analyze the documents.

Having full control over your data allows your organisation to achieve maximum flexibility, which can be used by legal or forensic advisors to measure their productivity and run early case assessment, efforts to settle and other programs all in parallel.

For all of the above reasons, I have seen an explosion of RFI’s and RFP’s by corporate and government organizations that have decided to maintain full control over their eDiscovery data and by doing so, decimate the pre-trial costs and risks!

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