Control Litigation Costs by Making the Most of Your Internal Capabilities

Welcome to the 21st century: the age of exponentially increasing data volumes, both national and international data managed by global corporations, reluctance to delete, and reaction to litigation, government investigations, and internal audits. All of this, and more, results in ever increasing eDiscovery budgets, with specific emphasis on document review. This stage of the litigation life cycle is quite often the most expensive and the significance of that spend to the end result of the litigation cannot be denied.

However, the actual review of the documents doesn’t take place until relatively late in the eDiscovery process, but you can start to lower the overall cost of review before litigation even begins. By taking certain steps to manage and control your data, you can lower the cost of eDiscovery at each stage in the EDRM.

Understand how to fully leverage existing internal resources

The risks and cost of eDiscovery are exacerbated when an organization is dealing with multiple litigation matters and has not yet developed an internal process and methodology to manage and control discovery. Outside resources have to get up to speed on the infrastructure, organization structure and patters of dispute and resolution to develop a plan for each and every time a discovery need is anticipated.

Organizations that invest in a trained staff member or contract resource who fully understands the organization’s landscape, save a considerable amount of time and effort when responding to a discovery request, and benefit from a more expeditious and repeatable process.

Leverage in-house technology functions and features to full capacity

The ability to think creatively and determine the best workflow for the organization requires a though process involving knowledge of what resources are available and how to best utilize technology in support of eDiscovery requirements. Each tool comes with its own set of features, functionality, interface and other components that support the eDiscovery process.

Most review tools will deliver a standard set of features; there might be components that the organization may not be fully leveraging. By understanding all of the capabilities of your in-house tools, you’ll be able to understand which functions you can support internally and make informed, strategic decisions about the type and volume of work you outsource to a third-party vendor.

For example, Office 365 offers a suite of tools that can work seamlessly with internal systems and workflows. With an E5 license, you have the ability to apply predictive coding as well as near duplicate detection, email threading and other analytics at the beginning of the process. But users can also use this technology beyond just immediate litigation needs.

It can be used to assess old email and other electronic records that were being retained for business, regulatory or past litigation reasons. This assessment may lead to purging, thereby reducing storage costs and future liabilities, as well as ensuring compliance with corporate data retention policies.

If you are only using one component of your in-house technology, you could be missing opportunities to further lower the cost of eDiscovery by using software you already own.

Assign and train dedicated staff members

Establishing an internal “discovery team” will minimize the business impact of having outside entities directing eDiscovery efforts without knowledge of the organization. The team should of course appropriately respond to discovery requests, but should also build a “playbook” of procedures to follow for every discovery response. Well-developed procedures will lessen to a manageable level the impact and interruption of a discovery response.

To move from a reactive to a proactive position, at least some discovery expertise must reside in-house and a team of internal representatives for legal, IT, business units, records, HR and international offices is a start. Senior employees in the various business segments should have specific responsibilities to identify litigation triggers, custodians and important sources of ESI, and to understand and document the computing environment in which the ESI resides. Experts recommend assessing how much internal bandwidth you can realistically dedicate to these efforts, identify gaps and determine what you will outsource prior to active litigation, if possible.

Identify gaps and outsource missing functions

Regardless of law firm size or complexity of matters, the need often arises to outsource some or all of the eDiscovery process to a third party. By assessing your litigation history and eDiscovery workflows over the last few years, you can use that information to only outsource the necessary functions. This can be anything from assistance with sifting through your ESI for appropriate relevant content, to hosting it for review and production and to do the more mundane data processing tasks associated with these. Perhaps you need to share documents with the client or co-counsel in the “cloud” and the firm’s software doesn’t have that functionality; or the volume of documents to process is beyond the capability of the internal department.

Whatever the reason, it is critical to thoroughly vet the third party that will be handling and hosting your data and understand the different outsourcing options that are available.

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