Part 2 of 6: In-House, Outsourced, Mix
Organizations today accumulate unimaginable amounts of information. Although partly driven by external factors, the major contributor is internal: ineffective management of electronic information, exacerbated by the declining cost of information storage.
Attempts by information technology (IT) departments to impose storage limitations meet strong resistance. In most cases, IT departments have simply accommodated the explosive increase and excessive retention of information. The crux of the problem: Organizations retain information not because they expect to use it, but because there is no compelling reason to discard it.
A growing external demand today is e-discovery. In-house council is responsible for compliance with discovery obligations and must have knowledge and familiarity with (1) the nature and location of electronically stored information (ESI), (2) relevant computer systems and applications, (3) document retention schedules, policies, practices and enforcement, and any need for suspension or modification thereof and (4) the search, storage and retrieval capabilities of the organization and the attendant costs.
The courts expect counsel to confer in good faith early and often throughout litigation disputes, and to cooperatively reach agreement or identify e-discovery issues for the court. Such issues may include the form of: production of ESI; cost allocation; protection of privileged, private and confidential information; and other issues relevant to searching, preserving and producing ESI. An organization’s decision to direct either in-house or third-party resources to perform these tasks directly impacts the total cost of discovery, which can reach millions of dollars in large and complex cases.
There are six phases to the Electronic Discovery Reference Model (pictures in blog post 1):
- Information Management – from initial creation of ESI to its final disposition;
- Identification – locating potentially relevant sources of ESI and determining their scope;
- Preservation, Collection – ensuring that ESI is protected against inappropriate alteration or destruction; gathering ESI for further processing;
- Processing, Review, Analysis – reducing the volume of ESI and converting it, if necessary, to more suitable forms; evaluating ESI for relevance and privilege as well as for content and context;
- Production – delivering ESI to others in appropriate forms and using appropriate delivery mechanisms; and
- Presentation – displaying ESI before audiences (at depositions, hearings, trials, etc.).
Phases 1-3 are normally within the scope of an organization’s IT capabilities. However, consultative services may be necessary in more complex cases. Phases 4-6 are more likely to require outsourcing for two reasons: (a) the scope of the effort may overwhelm in-house resources and (b) the complexity of the discovery request may demand specialized search, analysis and presentation services.
Your organization must determine the most cost-effective work plan for each e-discovery request. A blended solution (partly in-house and partly outsourced) may prove desirable in many instances, comprehensive in-house information management (Phase 1) establishes the best foundation for a successful e-discovery response: lowering costs and meeting compliance requirements on the first try.
** This is the second part in a six-part series which comprise an abridged version of the article “E-Discovery Costs and Benefits,” written by Daniel Garrie and published in the Los Angeles Daily Journal.