The greatest challenge we experience is the requirement to educate IT and legal teams on the downstream impact of their technology decisions (e.g., an application may be a dream to manage for the IT team but could be very poor for review and production purposes). Our challenge is getting both teams to factor in functionality for all stakeholders and the impact of downstream costs, such as review, legal risk, analysis, etc., to their overall Return On Investment (ROI) calculations.
For example, a few years ago DiscoverReady had a conversation with a lawyer who needed high-level help understanding the basics of eDiscovery. Three months later, he was listed on his firm’s website as the eDiscovery practice leader. DiscoverReady recommends legal counsel be aware of self-proclaimed experts and stay deeply involved in the eDiscovery process.
Unlike electronic data, physical case evidence exerted boundaries on the legal budget based on one’s tolerance for going through the boxes of paper and other paper-based evidence. With today’s electronically stored information (ESI), cost provisioning has become unpredictable. It has changed because a single, four-gigabyte thumb drive can have 240,000 document pages on it. Counsel doesn’t really know how many of these documents will be relevant until the review cycle, unless there is an early case assessment done.
For IT professionals who see no reason to treat evidence any differently than any other data, I practice a simple chain of custody exercise. I have them simply “move” files from on physical disk to another. Many people interpret data movement like they would move a chair; however, when you move Electronically Stored Information (ESI) from one physical device to another, it moves a representation of the original item. Critical things like data ownership, group security, created date and many other pieces of metadata (data about data) are changed when the data is “moved.” This minor issue can become a major legal risk when authenticating chain of custody in court.
When these two groups meet, the language and focus is decidedly different. Fios consultants use skills of communication and collaboration to bridge this gap. This has been the focus of Fios since our inception nearly a decade ago. We pioneered the concept of litigation readiness in 2003, well before the amendments to the Federal Rules were in place, and have built an entire portfolio of discovery planning services to help both IT and legal prepare for discovery challenges. For example, in the data mapping process, we help them focus on eDiscovery as a business process that incorporates:
As CEO I’m happy to say my sales, engineering and operations teams are executing against our shared vision. AXS-One latest functionality includes a very sought after Case Manager module. It is providing our customers with a true self-service discovery and review capability. If I may indulge a bit on my team’s hard work; the Case Manager enables our customers to:
* Conduct initial searches themselves
* Review and modify the results of the searches
* Add dispositions to the searched results
* Package the search for additional review by outside counsel/other 3rd party
Joshua Konkle: One of the most frequently asked questions by CIO’s and others worried about the cost of data management is “how long do I have to keep my data, really?” What do you say when you get asked that question? — Bill Lyons: We can help is the first thing I say. We have been providing record compliance solutions for many years. In all cases, we discuss the need to plan for secure destruction and work with customers on implementing appropriate technology to manage the retention, disposition, preservation and destruction of data.
Prior to 2007 the drivers for archiving were two fold 1) operational efficiencies and 2) SEC 17a4. The latter required financial services companies to maintain a record of every email sent and received from the company. These two issues drove the systems to retain and manage data, largely email initial. The early success of products from KVS, Inc, now Symantec, are clear examples of people buying for specific applications.
I would agree with that 70% of the time reviews require more data from the source, in fact, it is probably higher. The reason the source data needs to be recalled during review is based on a simple fact – “the review phase is the FIRST time a qualified reviewer has looked at the data qualitatively, i.e. custodians, concepts, context etc.” Waiting until the data is in a review system to evaluate it is causing companies thousands if not millions annually. Those dollars would be much better spent as pennies, which is the cost of ECA tools in terms of review budgets. The goal’s are simple 1) reduce data sets going into review 2) improve data review during collection.
Joshua Konkle: In companies with multiple litigations and complex IT the argument is often made for soup-to-nuts approach, preservation to production what are your thoughts on such a system? — Greg Buckles: First let me say that information management is one of the most important pieces of the eDiscovery reference model. Second, the soup-to-nuts approach may lack flexibility by design and could create inefficiency depending on the scale of a matter. For example, a system that works for a small HR case, may not work for a shareholder lawsuit.