This is the eighth article in a series that explores practical tools and strategies to proactively manage costs and effectively navigate through the eDiscovery process for litigation, internal investigations and regulatory matters. The series provides practical tips on document management, data mapping, discovery planning, custodian interviews, document processing and hosting, eDiscovery technology and explores proposed arbitration rules and alternative dispute resolution.
Proactive management of electronic information is one of the best ways to minimize costs and risks associated with eDiscovery. This includes enterprises making decisions on the appropriate approach to managing eDiscovery based on needs, volume and resources available.
Over the last few years, the options available to enterprises to manage eDiscovery needs have changed considerably. The choices of available technology have increased, the functionality available has improved, and continues to improve, and the options for purchasing the technology have also changed.
While there is a wide spectrum among the below list, generally speaking, enterprises have the following options for managing eDiscovery:
Many enterprises leave all aspects of eDiscovery to external litigation counsel to manage as part of the litigation, including the decisions to further outsource the eDiscovery work to vendors. This approach can work well if external litigation counsel have a strong understanding and experience dealing with all aspects of electronic information.
The challenge with this approach is that, in our experience, litigation counsel are often insufficiently experienced to adequately manage the eDiscovery in a defensible and cost-effective manner. The methods and approaches to eDiscovery used by many counsel and law firms are often outdated and do not incorporate up-to-date technology and processes.
If enterprises leave the management of the eDiscovery process to litigation counsel, it is important for external counsel to be able to demonstrate experience and expertise with eDiscovery, or a willingness to retain competent eDiscovery counsel for assistance.
There is also a growing recognition of the professional responsibility of counsel to understand and be able to properly advise clients regarding all aspects of eDiscovery. Increasingly, enterprises and/or their litigation counsel are retaining specialized eDiscovery counsel to ensure matters are handled proportionately, defensibly and cost effectively.
Increasingly, large enterprises that are involved in multiple litigation/arbitration matters or regulatory proceedings are building internal teams to manage all aspects of eDiscovery directly, including procuring and managing all technology and substantive review.
This model requires the enterprise to invest in the technology and human resources within the legal department, and to have law clerks and in-house counsel who understand the legal obligations arising from eDiscovery and who have the technical capability to manage/optimize the review platform software.
Under this approach, the internal legal department will engage/manage external review counsel either on a general retainer or project basis to review documents and provide its external litigation counsel the relevant records for production.
What is becoming more common is a hybrid approach that combines outsourcing and internal enterprise management of eDiscovery. This approach is widely varied but can help manage costs without overtaxing the enterprise’s human resources and capital budget.
While the range of options are seemingly endless with a hybrid approach, common models typically include the enterprise procuring the technology, while outsourcing the management of the databases and review to eDiscovery counsel, or directing that external ligation counsel work with specific providers and eDiscovery counsel chosen by the enterprise.
One of the biggest challenges enterprises and counsel face is the fact that the technology is ever evolving. Review and business models to manage electronic evidence need to evolve with the technology, particularly to help ensure a proportionate and defensible process. Regardless of the model chosen, it is important to understand the costs and risks of each of the options.
Crystal O’Donnell is the founder, CEO and senior counsel at Heuristica Discovery Counsel LLP. Heuristica has offices in Toronto and Calgary and is the sole national law firm whose practice is limited to eDiscovery and electronic evidence.