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Precise navigation along the journey of electronic discovery requires more than a simple roadmap of obligations. Protocols must be integrated into business processes, and any imprecision or misdirection is unacceptable in this era of heightened accountability. Attorneys need a global positioning system (GPS) to guide their strategy for document management beginning with an automated legal hold strategy.
The Challenge of Decentralized Management
One of the primary misconceptions among legal professionals today is that e-discovery is a unified and continuous process. In reality, e-discovery consists of sets and subsets of activity ranging from preservation to production. Separating individual processes, as distinct as they are from each other, is almost impossible as they are deeply interconnected. These interconnected processes make managing discovery in the traditional decentralized manner extremely costly. The costs of decentralized discovery management execution can easily run into the millions of dollars for individual matters. In addition to these staggering direct monetary costs, the opportunity costs of decentralized execution can also be incredibly high based on the requirement for redundant equipment, tools, and staff. However, there is an alternative to decentralized discovery management.
The Benefit of Centralized Management
One solution that is capturing the imagination and pocketbooks of organizations today is the electronic end-to-end workflow platform. With the benefit of seamless integration, this type of platform helps in the centralization of discovery management by allowing for the automation of workflow. This automation of workflow enables legal teams to both organize the various stages of discovery and to monitor the cost of each stage in detail (e.g., separating preservation fees into individual tasks such as data assessment, preservation, vendor evaluation, response coordination and legal hold).
Energizing the Legal Hold Process
The legal hold process in many organizations is based on the common “fire drill strategy.” This fire drill approach to legal holds rarely succeeds without inadvertent disclosure or court sanctions and is increasingly perilous with the growing sophistication of courts in the area of legal technology. To avoid the potential liability of such an approach, litigators should consider not only the implementation of centralized discovery management technology, but also how they energize their litigation hold strategy using this technology.
In energizing the legal hold process, it is important to assemble a multifaceted discovery response team at the outset and have them draft a targeted legal hold notice.
Once completed, the approved notice should be properly distributed to a targeted group so the proper custodians can both suspend data destruction activities and confirm they are in adherence to the legal hold notice. Unfortunately, it is at this point that the legal hold process has its greatest potential for faltering as many legal and IT professionals erroneously assume that the legal hold requirement is automatically met. As a result, many corporations fail to implement proper mechanisms to ensure and validate that the appropriate data is preserved for discovery requests.
Additionally, another challenge in energizing the legal hold process is ensuring that the targeted custodians are interviewed by the legal team. This task is often overlooked because it is time-consuming and difficult to schedule. However, an interview may reveal additional custodians, unknown sources of data, or prompt early action to recover data deleted prior to receipt of the notice. Also, it may serve to eliminate existing custodians from consideration and prevent unnecessary and costly collection. Case law actually demonstrates that sanctions are more likely to be ordered against entities that do not interview custodians. Ironically, the interview process is automatic and virtually effortless when managed using centralized discovery management technology.
Additional Considerations for a Single Platform
In energizing the e-discovery process beyond legal holds, legal teams should also consider ways to streamline the discovery process so they can respond quickly and completely to simple requests under court-ordered timelines. This can be accomplished by encouraging the use of templates and preset follow-up communications. These types of tools, available in most single platform discovery management solutions, also help enforce preservation and avoid spoliation while reducing the time spent on communication activities.
Collaboration between in-house counsel, outside counsel and preferred litigation support vendors is also an important way to streamline the discovery process. Using a single platform discovery management solution can enhance this collaboration, help ensure data defensibility and also reduce the time and monetary expenses associated with e-discovery.
Choosing Between a Roadmap and GPS
The future of discovery process management is certainly moving toward the use of technology that provides process integration and tracking management. Although this technology is essential and uniquely capable of addressing multiple discovery concerns simultaneously, many litigators are not even aware that it is available in the marketplace today. These litigators may be continuing to implement “fire drill” approaches and tools to address legal hold requirements. While hoping for the best, many of these litigators may be seeing an unpleasant meeting with a judge in their future.
Process planning is important, and e-discovery road maps are great. In order to meet the increasing challenges of discovery process management, it seems reasonable for litigators to use legal process integration and tracking management technology. This technology, best manifested in single-platform, centrally-managed solutions, can provide organizations the best chance for success in legal task execution as well as legal task tracking. In fact, this technology could be the difference between organizations navigating the process of e-discovery with just a roadmap or navigating the process with a GPS.
About the Author
Bobby Balachandran is the CEO of Exterro, Inc., a leading provider of advanced workflow technology and automation solutions exclusively for legal-hold and discovery management in the legal industry. Bobby leads the overall strategy and vision of the company. He ensures that the senior management team is on track with a unified direction to execute the company’s vision and provide excellent customer service. He fosters a culture within the company which helps the organization maintain aggressive and sustained growth and provide innovative solutions to Exterro’s customers. He can be reached at firstname.lastname@example.org.