four ediscovery challenges you must master but...

bluesource White PaperFour eDiscovery challenges you must master... but probably haven’t

Four eDiscovery challenges you must master...but probably haven’t

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Overview


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In today’s increasingly litigious climate, organisations are increasingly facing the threat of legal claims being made against them. Unfortunately, many organisations are dangerously exposed to this risk, as they don’t possess effective processes and systems to swiftly respond to a claim.

This article discusses the challenges that IT, HR and legal executives face when dealing with an eDiscovery trigger highlighting best practice solutions that minimise an organisation’s pain and expense.



The eDiscovery challenge

At some stage, an organisation will experience an event that triggers the process of identifying, locating, collecting and producing electronic information as part of a lawsuit or internal investigation. Whatever scenario is driving the collection and production of electronically stored information, the challenge is providing responsive information - in a consistent, timely and cost-effective manner that is also deemed acceptable and defensible in a court of law.

1) Big data retentionThe first and growing challenge for organisations is retaining huge volumes of structured and unstructured data, subject to legal preservation/compliance obligations, and maintaining official records, in accordance with documented policy.

2) Identifying data sources Organisations now operate in a climate of vastly expanding, unstructured, data sources that are driven by individuals - not formalised systems. This can make locating and archiving specific pieces of information difficult for those that lack a well-managed approach. When requests are made for organisations to provide historic information, or across many different people, the process can become even more problematic.

A recent Osterman survey of UK organisations determined that nearly 60% of the organisations surveyed claimed inadequate eDiscovery capabilities despite recognising the importance of long-term retention for both internal purposes and critically, compliance.

Osterman research also indicates organisations are completely unprepared to archive social media content.

3) Data preparationWhen faced with a claim, organisations, must employ time and resources to establish if they have the required data, identify where it is stored, and determine its relevance to the case – all within a short legal response deadline. Using inefficient data discovery tools, processes and archiving systems, leads to errors across the eDiscovery lifecycle. This failure, results in hefty non-compliance and missed deadline sanctions.

The risk of missing court deadlines often prompts organisations to outsource their eDiscovery activities to expensive professional services companies or lawyers that charge to produce a case or defence.

Nearly 60% of organisations surveyed claimed inadequate eDiscovery capabilities. 1 The Need for Better Archiving Solutions by Osterman Research Inc. Published March 2014

Technology to the rescue. Clearwell customers save an average of 63% on processing costs and 80% on data by automating the collection and preservation of relevant information. 2 Leveraging Analytics to Lower eDiscovery Costs: A Study of Clearwell Systems’ Customers by Enterprise Strategy Group



The high fees include the cost of storing all the data gathered. Often data is sent before being refined down to a more manageable, relevant size, driving up costs. However, if organisations sent only relevant data to 3rd party companies, this alone would provide a significant saving in resource costs.

4) Legal hold & data preservation Data preservation is the act of ensuring that “known potentially responsive information” is preserved in a “defensible state”. This means that it can be empirically and forensically demonstrated that information, relevant to a triggering event, has not been altered from the time after a subpoena or inquiry was initiated.

High-level metadata attributes, such as system modify, access and create dates, should not be altered in any way, nor should the substantive information contained in the data itself. This principle is applicable to both on-line and off-line data.

In situations where organisations have physical custody and control of data, it is important that relevant employees are provided with notice to preserve and not alter information deemed pertinent to open litigation.

Increasingly, courts are not only asking to examine documentation, but for a record of how legal holds and data preservation were implemented. The additional scrutiny is putting additional pressure on organisations to replace manual, patchy processes with well-documented, technology-enabled automated systems.

For all of these reasons, the use of standard MS-Exchange mailboxes to manage data preservation notification process is no longer complete. To facilitate an effective hold notification, a legal hold management system is preferable.



Solutions

It is essential for organisations to manage data throughout its life-cycle - from creation to destruction. Organisations must be proactive and meticulous in their handling of data archives and have a data management policy in place prior to an eDiscovery claim. For this reason most organisations make heavy use of systems of records, from IT asset management databases, HR and identity management systems to established email, unstructured data, mobile devices and 3rd party repositories. ‘Data mapping’ can help an enterprise “centrally” identify relevant data sources in a consistent and seamless way.

A data map is a catalogue of the company’s records by business unit and should specify the various types of electronic media on which they are maintained.

A data map is one element to a successful outcome, but it is not a one-time exercise. The challenge is in maintaining the integrity of the data map over time. Employing an archiving and eDiscovery solution designed around two key eDiscovery best practice activities; Technology Assisted Review (TAR) and the Electronic Discovery Reference Model (EDRM) will maintain the data map.

Organisations that take such pre-emptive measures should find the process of complying with an eDiscovery request much less stressful and time-consuming.

Done properly, a data map provides an organisation with an in-depth understanding of the nature, type and location of its records and the retention practices associated with each. In the event of an eDiscovery event, this will reduce operational impact on the business and the risk of missing data sources.

TAR, also known as predictive coding, intelligent review and computer-assisted review, can at least halve the review time and costs, by automating the manual process of sifting through individual documents, to find the relevant information.



Another key development that can assist TAR activities is EDRM, which is a standardised process for managing electronic discovery. EDRM is a highly effective guide that organisations follow throughout the electronic discovery process. The framework outlines the legal, regulatory, and investigative steps that almost all companies follow when performing eDiscovery. These phases include:

1. Information Management – arranging data to mitigate risk & expenses should e-discovery become an issue, from initial creation of electronically stored information through its final disposition.

2. Identification – locating potential sources of electronically stored information (ESI) and establishes its scope, breadth and depth.

3. Preservation – ensuring that ESI is protected against inappropriate alteration or destruction. 4. Collection – gathering ESI for further use in the e-discovery process – including processing, review, etc.

5. Processing – reducing the volume of ESI and converting it, if necessary, to forms more suitable for review & analysis.

6. Review – evaluating ESI for relevance & privilege.

7. Analysis – examining ESI for content & context, including key patterns, topics, people & discussion.

8. Production – delivering ESI to others in appropriate forms & using appropriate delivery mechanisms.

9. Presentation – displaying ESI before audiences at depositions, hearings, trials, etc - to elicit further information, validate existing facts or positions, or persuade an audience.

It is vitally important that organisations ensure their archiving solutions have been designed to work in parallel with the EDRM. The solution must also feature the full functionality for each stage of the model.



Best Practices In Action

Here are two examples of large organisations that have successfully completed eDiscovery challenges using Symantec’s Clearwell eDiscovery platform and bluesource services expertise. This platform is feature-rich, including strong semantic analysis, native file format review for over 500 file types, and predictive coding. It also offers strong functionality across all phases of the EDRM.

Leading US broadcast networkThe organisation needed a platform that could support collaboration between its IT and legal teams with one system. The organisation chose the Clearwell eDiscovery platform for processing, preliminary search, cull-down, and early case assessment, so they could lower the processing and review costs. The platform also performs efficient and early electronic document-based case assessment. By choosing the Clearwell eDiscovery platform, the organisation became immediately more efficient, performing twice the amount of work with fewer resources.

The organisation experienced a 40 to 45% gain in eDiscovery business process efficiency. IT and legal teams were able to successfully collaborate and assess cases more effectively with the single, easy-to-use interface. The efficiency gains, coupled with their ability to now deliver smaller data sets for review, helped the organisation achieve a rapid return on their Clearwell investment.

Key US government agencyThe agency has a large number of differing types of documents - often coming from a number of sources and in various formats. The agency’s current tools lacked the advanced search capability necessary to efficiently review these documents.

Due to the weak search tool and a disjointed workflow, the agency had to review the documents manually, causing significant investment of time and resources. With such large amounts of data to analyse from multiple different sources, the agency benefitted greatly from choosing the Clearwell eDiscovery platform. The agency was able to reduce the amount of time needed to analyse data and find critical evidence from weeks or months down to hours or days.

Since the Clearwell eDiscovery platform eliminates duplicate versions of all documents, the agency saw a reduction in total investigative costs. Agents who were able to use the new eDiscovery platform, reported saving as much as two years in document review time - compared to the manual case review process.

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About bluesource

www.bluesource.co.uk


bluesource UK office

122 Tooley StreetLondonSE1 2TU0845 319 [email protected]

bluesource can help your organisation address its compliance and legal discovery needs, leveraging the best-of-breed functionality in the industry’s leading archive solution - Enterprise Vault and Clearwell eDiscovery Platform.

We work with a range of global organisations, enabling them to retain far greater ownership over corporate information, and providing a platform which removes the burden on IT departments of searching across the information estate.

Let us show you how to implement best practices, enable quicker response times and implement a full lifecycle case management solution that will stand up to court scrutiny. Contact us at [email protected] to set up your customised assessment.

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Summary

The key for organisations to successfully build defensible, in-house e-discovery processes is to employ a combination of human expertise, best processes and use of TAR and EDRM orientated archiving and eDiscovery technology. As well as protecting an organisation’s reputation, being eDiscovery prepared will save vast amounts of time, resource and expense associated with a claim.

four ediscovery challenges you must master but...

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