I Give Thanks for E-Discovery!

I have seen a dramatic increase in awareness of the value and importance of information management issues over the past few years. I think a large contributing factor to this enhanced awareness is e-Discovery. Information professionals, and organizations need to take a moment and be thankful for e-Discovery and how it has helped further the cause of good information management and governance.

Documents and Discovery

“Discovery is a fact-finding process that takes place after a lawsuit has been filed and before trial in the matter, in order to allow the parties in the case to prepare for settlement or trial. It is based upon the belief that a free exchange of information is more likely to help uncover the truth regarding the facts in issue. Court rules and state rules of evidence govern the discovery procedure.” (Source: USLEGAL.com)

My early career looked much different; my role as an information management professional primarily supported finding paper records and information when asked by attorneys who were “knee deep” in discovery matters. Over time, organizations have been increasing their creation, capture, storage and management of electronic information, and although the cost of storing digital information was relatively high and limited to those organizations and government agencies with large budgets, more organizations eventually moved into the electronic world. This movement did not take with it the best practices associated with managing information or retention – amassing large scale datasets or repositories that included both records and “casual” conversations.

These changes and increased volumes posed problems for courts and attorneys. Especially, when the courts and case law lagged behind the issues facing organizations today. Lawyers began using a variety of tactics intended to “encourage” litigants to settle a lawsuit before it ever gets into court. One of these tactics can be to drive up the cost of discovery to such an extent that a party believes that it will cost more to respond to the discovery request than to settle the suit.

The explosive growth of email and other messaging tools over the past decade, as well as the wider availability of lower cost digital storage applications, has meant that attorneys have had to learn to specify these sources in their discovery requests or drown in data, information and legal costs.

It took a while for the legal community to learn how expensive and resource-intensive it could be for litigants to search through, identify, and produce electronically stored information (ESI). But, once they recognized that email, in particular, could be a discovery treasure trove (because it was difficult to search, driving up costs, and might contain enormous volumes of unmonitored message text, increasing liability for litigants), the eDiscovery floodgates opened.

Lawyers have found that organizations often don’t know where to find digital information responsive to discovery requests. Initially, lawyers did not engage Information Management Professionals for e-Discovery, assuming that IT could find what they needed. In the digital world, it can be much worse than looking for a needle in a haystack. If organizations don’t know where specific information can be found, or even if it exists, they may have to produce huge haystacks (collections of digital information), without being certain that there’s a needle inside any of them. Attorneys began asking for an organization’s entire email repository, as well as the contents of document management systems and file shares.

Attempts have been made to moderate the tendency for attorneys to use broad-brush discovery as a way to provoke early settlement of lawsuits simply to avoid the high costs. For instance, the 2006 revisions to the Federal Rules of Civil Procedure incorporated requirements for a “meet and confer” session where both sides would discuss potentially discoverable electronically stored information (ESI) and agree to ways in which the scope and costs may be limited. The intent was admirable, but the results have been less than everyone hoped.

To help organizations deal with the deluge of eDiscovery requests an entirely new vendor community appeared: eDiscovery service providers.

The eDiscovery Problem

If you are asked to provide copies of all emails and documents pertaining to the ABC Project from July 1999 until March 2007, where do you begin?

For emails, you would need to start by searching all email repositories (servers) for the keyword, “ABC Project”. But, that would only be the beginning. Because there might be applicable email messages that did not use this keyword, you’d probably need to identify who the key employees were during that timeframe, and try to review all of their emails, too. If there were 10 key employees, and each received/sent 50 emails per day, that would be approximately 125,000 emails for each year. Over the 8 1⁄2 years covered by the discovery order, that would be more than a million emails.

For documents, you would need to find out where they were being stored during those 8 1⁄2 years. How many different repositories might there be? Did/does the organization have a document management system? What about shared drives? Are there any external repositories? What happened to the hard drives used during that time? Did employees working on the ABC Project send any documents to their personal email accounts?

Every search costs money and time, whether you’re paying employees of your organization or an eDiscovery vendor.

If you have to do this kind of search once, you’re unhappy and hope it never happens again. If you have to do it more than once, you start looking for better solutions.

The Electronic Discovery Reference Model (EDRM)

The eDiscovery community banded together to find solutions.

The EDRM was published in 2009. It’s the result of cooperative efforts from a large group of participating individuals and organizations (see http://www.edrm.net/participants).

It’s a simplified view of the stages of an eDiscovery project.

The first/earliest stage is Information Management. To information management professionals, this is not news. We’ve been saying it for years. But, we were often not heard by those in control of the purse strings.

If you don’t know where it is, you can’t produce it. If you don’t manage it, you can’t rely on it. Without reliable information management processes, every eDiscovery project has to start from scratch, and that’s very expensive.

Thank you, E-Discovery

As an information management professional, I don’t care where the good ideas come from; I want organizations to apply sound governance principles to their information assets, and to recognize the risks and costs of not doing so.

The high cost of eDiscovery, and the focused attention of some very smart people, have helped to achieve something that records professionals have been struggling to do for a very long time: helped the executive suite to understand the value of information governance.

Let’s all bow our heads and give thanks.

About Kaizen InfoSource

Kaizen InfoSource is the premier records and information management and information technology consultancy in northern California, with headquarters in Palo Alto, and offices in San Francisco, Los Angeles and Sacramento.  Kaizen’s team of consultants has over 100 years of experience in providing strategic, practical approaches to designing business process solutions, utilizing technology and developing information governance which provides a measurable return-on-investment for tis clients. Kaizen has extensive experience with working with both the private sector and government organizations.

For Further Information Contact:
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