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Litigation & eDiscovery

InfoGov Basics / Challenges / Litigation & eDiscovery

Litigation and its associated discovery processes is often the main reason that organisations embark on an Information Governance programme. Here is one statistic that perfectly illustrates why: For every 1044 pages of evidence preserved, captured, copied, collated and reviewed in eDiscovery, only one is actually produced. Just think about that statistic for a moment.

The time and cost that is incurred in identifying, retrieving, reviewing and then having to reject all of the information that is of absolutely no value in the issue at hand. Now consider that industry estimates show eDiscovery costs to be between $1.5-3 million per terabyte of stored information. If it had the ability to only return the relevant information, eDiscovery could potentially cost an organisation just a thousandth of what it does today.

Even if a 1000% reduction of cost is somewhat optimistic, the savings from an effective Information Governance programme are substantial. An FTI survey showed that only 20% organisations have fewer than 100 litigation events in a year, while 10% reported upwards of 2000 each year.

Information Governance and eDiscovery

The role of Information Governance is to gain control and management of every piece of an organisation’s information, so it is immediately clear what benefits it brings to eDiscovery. Identifying and removing duplicate information and information of no value ensures that Information Governance can drastically reduce the amount of data to be searched.

Classifying and storing information more effectively makes it easier to identify and retrieve only that information relevant to the particular issue. When considering an Information Governance programme for eDiscovery you should fully understand:

  • The evidence production requirements across a range of eDiscovery scenarios right from the outset
  • How information is to be stored, identified, collected and reviewed
  • Who all the parties involved in the litigation process are, their information requirements and how this will be communicated
  • The costs in any eDiscovery exercise and how these can be minimised. Legislation like the Jackson Report in the UK is placing greater onus on organisations to deliver far more accurate estimates at the outset of the discovery process
  • When information can be removed from corporate systems and the process for disposal

Defensible disposal is a vital consideration in eDiscovery. The ability to delete information from corporate systems is essential to avoid information overload, but it has to be done in an authorised and agreed manner. Most jurisdications do offer some form of ‘Safe harbor’ provision for organisations that fail to produce electronically stored information, but only if that organisation can show that it was properly managing its information and was acting in good faith.

Key Areas to Consider

Archiving

Archiving has traditionally involved offloading data and documents from online systems to offline storage such as tape warehouses. This results in information becoming difficult to search and retrieve. Information Governance – with suitable technology solutions – allows for consistent archiving strategies that make archived information much more accessible, with content that is searchable from a single system for both discovery and audit.

Retention Management

Retention Management ensures that information is not retained indefinitely and that a lifecycle is enforced for a piece of information. Many organisational regulations – such as accounting and book keeping – have document retention requirements that must be adhered to. A retention policy should always dictate how long information must be retained for and what to do with that information when the period expires. The general rule of thumb is that information should be removed at the earliest allowable point.

Records Management

The tagging and classification of information that has long underpinned Records Management is an essential requirement for eDiscovery. Within Information Governance, Records Management establishes the records policy and practices that can be applied according to the business value of that content to the organisation. More than this, through automatic categorisation, information is more easily identified and retrieved – as well as managed through its lifecycle from initial creation to deletion. It’s clear that unmanaged information makes it more difficult to conduct early case assessment and to develop optimum case strategies.

Defensible Disposal

Defensible disposal helps companies to curb storage growth and costs as well as ensuring that any regulatory requirements for information are met. It also underpins effective eDiscovery (see Information Governance and eDiscovery section above). It ensures that irrelevant or duplicate information is kept to a minimum. Importantly, it allows for the rapid and automatic identification of information that may be scheduled for disposal, but could be of interest in a particular litigation event, placing it on ‘Legal Hold’ for review.

Social Media

The world is changing and external communication is no longer simply about email. There is an ever growing number of communications channels that need to be managed. Any Information Governance programme should include instant messaging and the many  different social media channels available. This is especially true of eDiscovery where what was said, and when, can be vitally important. Your organisation needs to create a single platform which can accommodate information held in all of the different communication channels used – today and tomorrow.
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