Before finding yourself under the gun of litigation it might be a good idea to get a handle on how quickly you could access the vast quantities of data in your company.
“I think there’s a lot of learning to be done there in terms of what best way to approach it on an on-going basis,” says John Ohnjec, division director with Robert Half Legal in Ottawa. “If you jump into something without having that strong base of proper data management and retention you don’t know what can you retrieve if you don’t have that system in place already.”
In its latest report, “Future Law Office: Overcoming the e-Discovery Challenge,” Robert Half tackles the e-discovery question and looks at seven best practices:
1. Be proactive about data management
2. Know when to seek assistance
3. Clearly define roles
4. Establish efficient, effective communication
5. Engage outside specialists for managed review
6. Implement predictive coding appropriately
7. Use technology to target collections
As part of the report, 27 per cent of 350 lawyers surveyed from Canada and the United States said their law firm or company does not have a standard operating procedure in place to handle an unexpected request for discovery. As well, 22 per cent said they were not confident that, if faced with litigation or a regulatory request, their organization could efficiently respond to a request for information residing on social media sites.
The precursor to e-discovery starts with information governance, which is not a legal function and means working across business units legal isn’t typically used to dealing with, says Dera Nevin, managing counsel, e-discovery with TD Bank Group.
“A lot of this involves the expensing through legal of a failure to capitalize on information management systems and information governance processes,” says Nevin.
While getting hit with a major piece of litigation can be the trigger a company needs to embrace a formal information governance process, it is not always something like a large class action — it could be something that appears simple on the surface, such as an employment case, in which costs escalate when gathering the data from all the required sources becomes a monumental challenge.
“What may originally seem a small case, once there is a review of the data involved, all of a sudden becomes really substantial,” says Ohnjec.
Something as tedious sounding as sorting through thousands of e-mails on multiple devices can become quite costly.
“I’ve seen it so often — the $52,000 employment case that results in $500,000 in discovery costs and the corporation says, ‘We have to stop this.’ It’s often the catalyst behind the company saying, ‘we need to appoint a paralegal, lawyer, or technologist to start to deal with this,’” says Nevin.
Controlling costs requires a “robust records management plan” put in place “long before a company gets an e-discovery request,” according to the report.
It is also critical to have clearly defined roles around data processes and a point person empowered to make decisions even if it’s to outsource e-discovery — one conduit through which all decisions flow.
Once a company gets its information retention house in order, it may decide to approach an e-discovery process that involves working with external counsel and a third-party provider.
Nevin says companies are struggling with whether to internalize e-discovery or rely on external counsel or third-party specialists. “There’s no right or wrong answer, it will depend a lot on the organization and its priorities.”
Choosing an external e-discovery partner can be challenging as there are no standards in the marketplace and buyers often make spending decisions without having put in the time to fully investigate alternatives options. And because there are no standards in how buyers get quotes or how services are delivered, it can be difficult to compare.
“I find there’s a disconnect between people’s knowledge of the services in the marketplace and their purchasing power,” says Nevin.
Often after working with an external provider or a law firm, companies begin to understand the systems that need to be in place for e-discovery and that can assist them in taking it on themselves.
“I think in many cases it’s a hybrid of all three,” says Ohnjec. “I think it is quite common to see it as more of a collaborative effort.”
As there are no set standards for e-discovery it can be a confusing process for in-house teams to evaluate one outside provider’s offering from another.
Evaluating systems can involve the in-house counsel and the IT team of the company working in a collaborative effort — individuals who historically don’t have a relationship of working together. Legal has typically been a consumer of IT services in a different way than they need to work with an e-discovery program in-house.
“I don’t think an IT professional alone can assess an e-discovery provider as they don’t have the necessary legal knowledge and a GC alone may not be able to because they don’t have the IT knowledge,” says Ohnjec.