eDiscovery has become an inescapable burden that companies must accept as a new cost of doing business. Before computers became a ubiquitous part of daily corporate life, a litigant’s responsibility with respect to producing physical evidence during discovery was relatively straightforward: review company records, cull all documents responsive to the production demand, photocopy everything, and deliver a mountain of paper to opposing counsel. But as parties began to realize the wealth of information that could be garnered from adversaries’ electronically stored information (“ESI”), the discovery practice soon became a minefield for the unwary and an exercise in frustration for the technology-unsavvy.
Companies cannot take their eDiscovery obligations lightly. Sweeping changes to the Federal Rules of Civil Procedure went into effect in December 2006 to bring structure to electronic data discovery (“eDiscovery”). Three years later, it is clear that those changes have a sharp set of teeth backing them up. Fines ranging into the millions, and other substantial sanctions are swiftly handed down upon non-complying parties.
A business that wants to ensure its compliance with the requirements of eDiscovery has two choices: be proactive, and put measures in place before they are needed; or be reactive, and put out each fire as it flares up. The decision is not an easy one to make. To be reactive with respect to one’s eDiscovery and legal hold obligations is often to court disaster because of how many different things can go wrong during each of the multiple stages involved. ESI collection, preservation, analysis, and storage present unique challenges that—in a perfect world—require adequate planning to be implemented and maintained properly. The reality, however, is that a substantial number of businesses do not have available the resources necessary to implement a comprehensive proactive solution.
From Accumen’s perspective, it does not matter which path your organization prefers to follow, because we are able to provide you with the most relevant, effective solutions to allow you to be nearly as effective on a reactive basis as you would be with a proactive system. Our concern is to make sure you have an accurate, cost-effective solution that meets your needs and whose methodology can be easily defended should you find yourself involved in litigation.
Corporate expenditures on eDiscovery and litigation hold related products and services are expected to grow from the $2.7 billion spent in 2007 to $4.5 billion by 2010. Efficient proactive and reactive ESI management and eDiscovery planning and solutions will allow businesses to stay behind the expected expenditure curve. Properly implemented and operated solutions will allow you to mitigate or eliminate many of your costs, and to avoid the fines, sanctions, and adverse rulings that follow from failing to meet statutory, regulatory, and court ordered obligations. Additionally, the time consumed and wasted during eDiscovery places on businesses at least as great a burden as the hard costs associated with ESI processes.
So what should be your focus? Proper planning is more important for reactive solutions because the need to respond in short time periods can substantially raise the cost of compliance if a company is forced to scramble when responding to a discovery request. For proactive plans, make sure the solution is properly staffed. Overall, the key to proper planning is to budget enough funds to establish whatever system you choose, and to ensure things are done sufficiently and correctly the first time around.
Being “pennywise” in implementing and maintaining a practical, efficient, and effective ESI/eDiscovery system, will undoubtably result in “pound foolish” results. Too many times companies have told their IT departments there was no money in the budget to install a proper system, but then had to come up with far more than that cost to deal with the damage that resulted from not having it. Businesses must recognize that this is one instance where spending money will paradoxically cause them to save it.
To be successful in readying their ESI for preservation and production companies must rethink and reexamine their existing architecture and software. In many cases Accumen can leverage the existing technology, which, when combined with new, more efficient solutions, will result in lower operating costs and superior protection. Where a company has previously been shoe-horned into an existing solution that ought to be replaced entirely, Accumen will custom tailor a solution to best fit that organizations actual needs and budget.
Accumen solutions cover each phase of the EDD process relating to the acquisition, identification, analysis, storage, and retrieval of ESI, including:
- Collection, Real-Time or After the Fact
- Configurable Custodian Data Sweep Models
- ESI Preservation
- Notification of receipt of legal hold notice
- 26(f) Conference Prep
- ESI Movement with Chain of Custody Development/Establishment
- Linear and Non-Linear Searches
- First Pass Review
- Exports to Legal Review Systems/Services
- Secure, Ultra-High-Speed Transfer of Data to Review Facility or Outside Counsel
- Case Assessment
- Repository Segregation
- Off-Site Data Review Facilities