Transforming e-Discovery Into a Standard Business Process

In recent years, the need to treat e-discovery as a repeatable, streamlined process has been well-evidenced by a series of U.S. court opinions citing a wide range of e-discovery failures, including those related to preservation of electronically stored information (ESI), document productions and identification of potential custodians.

Burdens on corporations, especially multinational ones, related to e-discovery continue to grow both with respect to litigation and stepped-up regulatory agency actions. Adding to this problem is the yearly double-digit growth in of unstructured ESI and the challenge of locating it in the corporate information ecosystem.

Courts are well educated on advancing technologies, like early case assessment (ECA), legal hold software and predictive coding, as a means to control costs (proportionality), demonstrate reasonableness (transparency) and be more prepared for negotiations (cooperation). Yet, when looking at Fortune 1000 corporations for legal holds alone, Huron Legal estimates that only 300 to 350 organizations are taking advantage of technology to automate their processes.

I had the distinct pleasure of addressing this very issue with three members of AOL's legal department, and with Rob Hichens of Huron Legal in the second installment of Exterro's E-Discovery Masters webcast series, “Transforming E-Discovery as a Business Process,” http://bit.ly/1ueYDZI. This article shares their expertise and insights on how to reduce e-discovery complexity in five simple, but often hard to implement, steps.

Defining e-Discovery Maturity

Every organization has different levels of maturity (i.e., degree of formalization and optimization) when it comes to managing e-discovery. (The chart below defintes the different levels of maturity.)

[IMGCAP(1)]

According to Hichens, most of Huron's clients, when getting started, fall in the 1-2 range of the maturity scale. This was reiterated by AOL, which has been actively rebuilding and redefining its e-discovery processes. According to Tara Jones, lead paralegal at AOL, legal holds, until recently, were maintained by AOL's legal department on a spreadsheet. Since AOL is a multi-faceted company with many acquired companies, managing all of the holds via spreadsheet became a huge challenge, according to Jones. “We were facing serious defensibility issues with zero automated reporting capabilities. We were also potentially battling the loss of information. If one cell of the spreadsheet was deleted, the entire spreadsheet would become irrelevant,” she stated.

Getting Started

To get started, it's important to involve all stakeholders and assess all current processes used throughout the organization with the following five-step process:

1. Define roles. Many, if not most, project mistakes can be traced back to a misunderstanding or miscommunication. Formally defining roles and responsibilities and building them into the e-discovery workflow as to what will be delivered, how, when and by whom will prevent mistaken assumptions that are ultimately proven wrong and cause project delays or failures.

2. Review current state/gap analysis. In order to think more strategically about how to address each e-discovery phase, it's important to review the current state of the legal process and technologies being used to determine organization's maturity level. According to Jeff Novak, chief counsel of litigation and compliance at AOL, “You have to understand what you're spending and why before you can figure out a strategy for containing those costs.”

3. Develop a remediation plan. Once the improvements have been identified, the remediation plan needs to incorporate how to put them into effect and include the necessary approvals from executive sponsors. The most important thing to note, according to Jones, is when implementing the plan, you don't need to roll out every phase at once. “We couldn't just stop and forget our day jobs. We needed to do both simultaneously,” she said.

4. Develop e-discovery guidelines. Create a set of business guidelines that describe step-by-step the actions taken and roles and responsibilities of all stakeholders ' legal, IT, records management ' that detail how your organization treats e-discovery.

5. Execute the plan. The final step is to execute the plan for new projects and then begin measuring and improving the quality of project outcomes. Start with a test drive, such as a legal hold, and then adjust the process and roll out to other phases of the process.

Process Improvement in Action

AOL's legal team applied this five-step process, highlighting two key areas that served as the catalysts of its change: legal hold and IT department communications. In the initial assessment, some of the key areas that the AOL team reviewed included:

• Data volume: How much data was being accessed at the front and back end of the process?
• Staffing: How much time was being spent on the work being performed?
• Outside spend: How much money was being spent on outside counsel fees? Was the money being spent at the right part of the process?

“One thing we figured out is that when we looked at fragmented processes and costs, we determined that much of what was driving them was the need for improved front-end management through our retention practices,” stated Novak.

With an automated legal hold solution now in place, the legal team receives nightly automatic feeds from PeopleSoft, so employee statuses are known every morning. “Everything is tracked in the system by custodian. We know not only what holds custodians are currently on but have a historical view into past holds as well.”

Currently, the AOL team considers its e-discovery process to be in a relearning and rebuilding phase. The team reviews and refines its processes every six months. “We use our review process as a basis for making process improvements, so that we don't have to recreate the wheel every time a change is made,” said Jones.

Looking forward, lead paralegal Jarnitha Woodson added that the company is looking at additional cost and efficiency improvements, such as:

• Adding the ability to track all communications between its legal hold system and technology requests in projects.
• Streamlining document collections process to limit new collections to only new data.
• Conducting online custodian interviews and tie the responses to the legal hold history
• Having its legacy data, which includes patent technologies, scanned, cataloged and tracked so that it's easily accessible during discovery.

“We feel that utilizing the future technology to lower our spending costs will help reduce the cost of data in an efficient and cost effective manner,” said Woodson.

Conclusion

Applying the discipline of process optimization to e-discovery offers counsel and their teams the ability to meet both current and future e-discovery obligations. It has the potential to substantially reduce ESI storage and review costs by instituting standard protocols that prevent missed steps and minimize the corpus of ESI as it moves from phase to phase. It also brings into the legal department the benefits enjoyed by the organization's other departments. Nearly every other enterprise function ' financial reporting, application development, procurement, supply chain management, etc. ' has realized the potential of process optimization. AOL's example demonstrates that such potential applies with equal force to all legal departments. The full webcast is available for replay at http://bit.ly/1ueYDZI.

Scott Giordano is corporate technology counsel for Exterro, serving as the subject matter expert on the intersection of law and technology as it applies to e-discovery, information governance, compliance and risk management issues.

In recent years, the need to treat e-discovery as a repeatable, streamlined process has been well-evidenced by a series of U.S. court opinions citing a wide range of e-discovery failures, including those related to preservation of electronically stored information (ESI), document productions and identification of potential custodians.

Burdens on corporations, especially multinational ones, related to e-discovery continue to grow both with respect to litigation and stepped-up regulatory agency actions. Adding to this problem is the yearly double-digit growth in of unstructured ESI and the challenge of locating it in the corporate information ecosystem.

Courts are well educated on advancing technologies, like early case assessment (ECA), legal hold software and predictive coding, as a means to control costs (proportionality), demonstrate reasonableness (transparency) and be more prepared for negotiations (cooperation). Yet, when looking at Fortune 1000 corporations for legal holds alone, Huron Legal estimates that only 300 to 350 organizations are taking advantage of technology to automate their processes.

I had the distinct pleasure of addressing this very issue with three members of AOL's legal department, and with Rob Hichens of Huron Legal in the second installment of Exterro's E-Discovery Masters webcast series, “Transforming E-Discovery as a Business Process,” http://bit.ly/1ueYDZI. This article shares their expertise and insights on how to reduce e-discovery complexity in five simple, but often hard to implement, steps.

Defining e-Discovery Maturity

Every organization has different levels of maturity (i.e., degree of formalization and optimization) when it comes to managing e-discovery. (The chart below defintes the different levels of maturity.)

[IMGCAP(1)]

According to Hichens, most of Huron's clients, when getting started, fall in the 1-2 range of the maturity scale. This was reiterated by AOL, which has been actively rebuilding and redefining its e-discovery processes. According to Tara Jones, lead paralegal at AOL, legal holds, until recently, were maintained by AOL's legal department on a spreadsheet. Since AOL is a multi-faceted company with many acquired companies, managing all of the holds via spreadsheet became a huge challenge, according to Jones. “We were facing serious defensibility issues with zero automated reporting capabilities. We were also potentially battling the loss of information. If one cell of the spreadsheet was deleted, the entire spreadsheet would become irrelevant,” she stated.

Getting Started

To get started, it's important to involve all stakeholders and assess all current processes used throughout the organization with the following five-step process:

1. Define roles. Many, if not most, project mistakes can be traced back to a misunderstanding or miscommunication. Formally defining roles and responsibilities and building them into the e-discovery workflow as to what will be delivered, how, when and by whom will prevent mistaken assumptions that are ultimately proven wrong and cause project delays or failures.

2. Review current state/gap analysis. In order to think more strategically about how to address each e-discovery phase, it's important to review the current state of the legal process and technologies being used to determine organization's maturity level. According to Jeff Novak, chief counsel of litigation and compliance at AOL, “You have to understand what you're spending and why before you can figure out a strategy for containing those costs.”

3. Develop a remediation plan. Once the improvements have been identified, the remediation plan needs to incorporate how to put them into effect and include the necessary approvals from executive sponsors. The most important thing to note, according to Jones, is when implementing the plan, you don't need to roll out every phase at once. “We couldn't just stop and forget our day jobs. We needed to do both simultaneously,” she said.

4. Develop e-discovery guidelines. Create a set of business guidelines that describe step-by-step the actions taken and roles and responsibilities of all stakeholders ' legal, IT, records management ' that detail how your organization treats e-discovery.

5. Execute the plan. The final step is to execute the plan for new projects and then begin measuring and improving the quality of project outcomes. Start with a test drive, such as a legal hold, and then adjust the process and roll out to other phases of the process.

Process Improvement in Action

AOL's legal team applied this five-step process, highlighting two key areas that served as the catalysts of its change: legal hold and IT department communications. In the initial assessment, some of the key areas that the AOL team reviewed included:

• Data volume: How much data was being accessed at the front and back end of the process?
• Staffing: How much time was being spent on the work being performed?
• Outside spend: How much money was being spent on outside counsel fees? Was the money being spent at the right part of the process?

“One thing we figured out is that when we looked at fragmented processes and costs, we determined that much of what was driving them was the need for improved front-end management through our retention practices,” stated Novak.

With an automated legal hold solution now in place, the legal team receives nightly automatic feeds from PeopleSoft, so employee statuses are known every morning. “Everything is tracked in the system by custodian. We know not only what holds custodians are currently on but have a historical view into past holds as well.”

Currently, the AOL team considers its e-discovery process to be in a relearning and rebuilding phase. The team reviews and refines its processes every six months. “We use our review process as a basis for making process improvements, so that we don't have to recreate the wheel every time a change is made,” said Jones.

Looking forward, lead paralegal Jarnitha Woodson added that the company is looking at additional cost and efficiency improvements, such as:

• Adding the ability to track all communications between its legal hold system and technology requests in projects.
• Streamlining document collections process to limit new collections to only new data.
• Conducting online custodian interviews and tie the responses to the legal hold history
• Having its legacy data, which includes patent technologies, scanned, cataloged and tracked so that it's easily accessible during discovery.

“We feel that utilizing the future technology to lower our spending costs will help reduce the cost of data in an efficient and cost effective manner,” said Woodson.

Conclusion

Applying the discipline of process optimization to e-discovery offers counsel and their teams the ability to meet both current and future e-discovery obligations. It has the potential to substantially reduce ESI storage and review costs by instituting standard protocols that prevent missed steps and minimize the corpus of ESI as it moves from phase to phase. It also brings into the legal department the benefits enjoyed by the organization's other departments. Nearly every other enterprise function ' financial reporting, application development, procurement, supply chain management, etc. ' has realized the potential of process optimization. AOL's example demonstrates that such potential applies with equal force to all legal departments. The full webcast is available for replay at http://bit.ly/1ueYDZI.

Scott Giordano is corporate technology counsel for Exterro, serving as the subject matter expert on the intersection of law and technology as it applies to e-discovery, information governance, compliance and risk management issues.