Can It Really Help Business?

For many of us, E-Discovery has become a thorn in our side as we attempt to ensure that our organizations are able to be compliant with the court’s demands – particularly when dealing with the US Courts. Perhaps it’s time to look at some of the benefits of an effective e-discovery capability within an organization.

Of course the first value that is often commented on is related to Records Management and the ability to facilitate and strengthen the Records Management goals, thereby leading to a connection with Risk Management and the Chief Risk Officer’s portfolio. This generally is successful through the idea of “If you know what you’ve got and you know what you must keep, then you know what you can get rid of!” Records management initiatives that are facilitated by an effective e-discovery competency (including clearly being able to identify what information must be preserved for e-discovery) have shown to be able to significantly reduce operating expenses related to storage and recovery. To do this effectively requires three policies –

Retention Policy – defining what records must be kept, where and how they are to be kept and for what interval of time they are to be kept. (Of course the discussion of records versus documents is another topic altogether…)
Legal Hold Policy – defining the means by which records and documents subject to a Legal Hold are to be preserved and to be prevented from being destroyed.
Destruction Policy – defining the protocols for how records are to be destroyed once they reach the end of their life cycle.

The second potential area of value for an organization is through the increased interaction, communication and dialogue between Legal, IT and business units, thereby leading to a connection with Operations Management and the Chief Operations Officer’s portfolio. Typically, when launching either responding to an e-discovery demand or an e-discovery project, the first problem to overcome is the weak or non-existent relationship between Legal and IT. E-discovery requires a rapid development of the relationship and knowledge of the underlying systems, data stores, technology policies etc. The other critical aspect here is the ability to identify and develop an individual or individuals that are able to perform the role of deposition witnesses (in the US a 30(b)(6) witness) to provide detailed knowledge about the organization’s technology infrastructure, systems, and policies.

The third developing area of potential value is the ability for legal departments to leverage the data and information that is gathered as part of the e-discovery process and use it as part of the budget forecasting process, thereby leading to a connection with Financial Management and the Chief Financial Officer’s portfolio. It’s actually fairly straightforward –

• Track –
  • The number of matters
  • The stages of matters (ie. requires holds, requires collections, requires production)
  • The volume of data collected and the cost to collect the data on a per unit (ie. per mb) basis
• Determine –
  • A weighted probability based on stage of the matter (ie. matters that require holds, matters that require collections, matters that require production)
• Calculate –
  • Using historical data to project future costs

This approach, in it’s simplest form, can provide litigation managers the ability to leverage existing data to more effectively project future costs. Also, by increasing the number of variables the model can be used to project across a number of scenarios, matter types and business lines.

The potential organizational value of e-discovery remains to be seen in most organizations. Today, it is generally seen as legal-centric, however, by connecting to the Chief Risk Officer, Chief Operations Officer and the Chief Financial Officer, e-discovery can truly become an organizational value multiplier.