Why bring eDiscovery in-house?

March 8, 2016 Marta Farensbach

Traditional models of eDiscovery have involved collecting electronic files from email servers, file shares and other data repositories, then handing if off wholesale to outside vendors for culling, processing and review. With the advent of effective in-house software and solutions, more and more organizations are looking to in-sourcing as an effective method to reduce costs and gain control of their eDiscovery processes. This article will discuss the reasons why moving eDiscovery in-house can be beneficial, touching on the challenges found therein and outlining different ways to effectively in-source your eDiscovery process.

A typical eDiscovery process involves reducing a large volume of information to a practical, relevant set of documents that can be used effectively in litigation. As outlined by the Electronic Discovery Reference Model (EDRM), the steps in the eDiscovery process range from identifyingpreserving, and collecting the electronically stored information (ESI), through  processing,  review, analysisproduction and finally, presentation. Bringing these steps in-house, or in-sourcing, refers to shifting the steps of the process from external vendors to use internal company resources. There are many advantages for in-sourcing including cost reductionproject control, predictability, efficiency and integration into an over-all information governance strategy.

Benefits

The biggest advantage of in-sourcing eDiscovery is cost savings. Even implementing a few of the steps such as pre-culling can significantly reduce expenses. A previous article, points out:

… over 94 percent of eDiscovery costs come from processing and review. As noted by the ABA, even if the cost of processing data is manageable, the cost of reviewing it is not… The cost of processing and review, it turns out, hinges on the volume of data involved.  All trends indicate that ESI volumes are only going to continue to increase as digital data creation exponentially expands across all spectrums.

Reducing the amount of data that is sent downstream for processing is a step that is often moved in-house.  Internal resources typically have the knowledge to pinpoint appropriate data stores and additional savings are realized by using specialized software such as Sherpa Software’s Altitude eDiscovery (ideal for IT and legal collaboration) or Discovery Attender (on-premises searching power tool) to automate the process. These solutions help to target custodians, limit the collection to pertinent file types and apply filters to pinpoint relevant data. With the elimination of redundant or trivial information (ROT) combined with additional culling for domains, topics or keywords, bringing these tasks in-house can be expected show a significant return on investment in a minimal timeframe.

As litigation and regulatory requirements increase, so do the needs for eDiscovery.  Even without in-sourcing any steps, internal resources tend to get involved in the collection and oversight of the process. Formally setting up an eDiscovery team and putting together a litigation preparedness plan will go a long way in reducing the stress and scrambles associated with ad hoc measures. In-housing the process by creating a designated team, procedures, and software to complement the plan will bring much needed control and predictability to expenditures in both time and personnel. Furthermore, when used effectively, these same in-sourcing methods can be tasked for other purposes like supporting internal investigations, regulatory requirements and compliance needs.

Another benefit of in-sourcing involves utilizing the expertise already present in the organization. Technical personnel know where data is located, who has access to what machines and how best to collect the data. Management is aware of business processes and records managers are skilled at understanding the information life cycle of key documents. The legal team and inside counsel understands the intricacies of the case.  Targeting these resources and having them work together to support eDiscovery is a natural extension of their roles. Having these key stakeholders as part of a designated team makes potential litigation less intrusive to day to day workload and the effects more predictable as processes and policies are laid out well in advance.

Challenges

Bringing eDiscovery in-house isn’t always an easy thing to do, even though the cost benefits are significant. Many of the steps in the process are not ideal if the company does not have the expertise or bandwidth in-house. The biggest challenges come with having the right number and type of resources available to cope with the fluctuating nature of litigation demands. Legal matters tend to carry high risk – to help mitigate that, strong oversight is needed to minimize mistakes from both a legal and technical point of view. Buying software without having an effective team or eDiscovery plan would hardly benefit anyone. Additionally, there is a question of whether the advantages are worth the startup costs for implementing a discovery plan in-house. Lastly, because of the potential complexity, getting buy-in from the necessary stakeholders can be challenging, especially if it means adding to already full work-loads.

When to bring eDiscovery in house?

Because of the challenges outlined above, it is important to make sure that in-sourcing would work in your unique environment. Organizations of any size should ask whether or not it makes sense to in-source eDiscovery, and if so, how much of it can reasonably be done by internal resources. To assist with decision-making, it helps to answer the following questions:

  • How often are we involved in litigation, regulatory inquiries or internal investigations?
  • Do we have an eDiscovery plan? Who manages it?
  • How much is eDiscovery costing us now? Does it disrupt day to day business or department tasks?
  • What processes are we currently using? How long are they taking? Can they be automated?
  • Are our processes defensible and repeatable? What is our risk expanding the in-house role?
  • What resources (personnel, software) do we have in-house to assist in eDiscovery?
  • Can we easily allocate resources to reducing the amount of data provided to outside vendors?
  • What expenditure is needed to get cost reductions for eDiscovery?   What is the ROI?

Graduated Approach

Keep in mind that not all the steps need to be implemented in full or all at once. EDiscovery might not even be the target of your planning. A strong information governance framework, for example, benefits not only any eDiscovery planning, but should be a business necessity from a security, usage policy, disaster recovery and records management point of view.

When dealing with eDiscovery, many organizations will focus their in-sourcing efforts on the ‘left side’ of the EDRM. Preservation, collection and culling may be handled in-house. Here there is the most gain from cost savings neatly balanced with internal competencies. The more complex review and processing tasks are reserved for outside vendors. Another popular option is for organizations to handle small or low risk cases in-house using internal IT and legal resources, while outsourcing larger, more complex matters.

Moving eDiscovery in-house makes sense for many organizations. Ask the right questions, analyze the risks and rewards to your company.  If the move makes sense for you, don’t hesitate to contact the team here at Sherpa Software to help you manage your eDiscovery.

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