An E-Discovery Renaissance: Finding Your Place at the Table

Stephanie Maw Booher, Director-E-Discovery Services, Keating Muething & Klekamp
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Overall Landscape

Most of us will agree that the massive growth and sophistication of Big Data, Cloud, Mobile, Networking and related technologies in specifically the last three to five years, have driven what can be perhaps the most clear presentations of cause and effect, yin and yang, and even supply and demand in recent market history. In the world of e-discovery, I see Big Data as the most looming factor driving this change and growth, knowing that in 2011 we learned that Electronically Stored Information (“ESI”) was found to be doubling or tripling every two years, with estimates of 1.8 Zettabytes (1.8 trillion GB), where 85 percent of that data lived in private business domains subject to litigation, and hence down-cycle e-discovery preservation, collection, document review (ouch!) and document production costs.

Fast forwarding to 2016: we see the simultaneous forces of expansion and contraction operating within Big Data. On one hand—the continued advancement of mobile, remote, personal data sources and penetration of consumer devices and technologies, all for use in generating business content, plays a known but often ignored or under-diagnosed symptom contributing to this unprecedented proliferation of Big Data. On the other hand, the development and fairly recent sophistication around Big Data mining and analytics technology has worked to reduce and make manageable this otherwise massive and complex e-discovery data playing field. We are somewhat paradoxically therefore simultaneously increasing the volume and complexity of dispute evidentiary data sources and volumes, while later working to decrease and reduce this same volume and complexity to a more manageable and therefore less costly amount as it pertains to the discovery phases of a litigation or regulatory investigation matter.

The development around big data mining and analytics technology has worked to reduce and manage the otherwise massive and complex e-discovery data playing field 
 

The former scenario, combined with the fact that today’s workforce is largely mobile and virtual in nature rather than local, physical or hard-wired in nature, makes it very difficult for companies (translation:  IT and IS officers and management) to develop, evolve and enforce the inescapable and rightfully top-of-mind cyber-security defenses necessary to protect enterprise, client and partners’ data, much less be able to attempt to granularly identify what data exists where within the enterprise, when and where and why is it being modified, transferred and duplicated, both internally and externally. Add to that the pain points surrounding real-time communications technology such as SMS, FaceTime and Skype. While fairly innocuous to enjoy from a personal communications standpoint, they can take on a more ominous tone when facing litigation, regulatory investigations and particularly e-discovery requirements, which, in the United States, require “preservation” and later “collection” and “production” of this Electronically Stored Information (“ESI”) and typically in its native file format accompanied by a litigation database loadfile reflecting all of the objective, system and file metadata field values surrounding each and every document record, or in this scenario, message communication item. Sounds easy, right? Eh, not exactly. While mobile device forensics, cell site analysis, and more advanced encryption technologies help the cause, they are still, at least from our experience, typically only partially exhaustive due to the inherent hardware and collection software limitations present, absent, among other things, the ability to leverage an operating system for collection purposes. All of this to say it’s one thing to preserve, collect, process/cull, review and produce standard unstructured e-discovery data such as e-mail messages and Word documents, but completely another thing to do the same for text messages, VOIP messages and social media content, for example.

An important discipline known as Records and Information Management, or RIM, has recently received growing interest, attention and service offerings with what I will call a “re-branding” of sorts, as information governance, or IG – and, notably, not just by my fellow technologists within the organization, but by risk, audit, operations and perhaps most notably, business unit and c-suite management. While IG is viewed as imperative by a few, necessary by some, providing a competitive advantage by still some others, it is still largely in its burgeoning phases of development, and, as a result, is often still viewed as an unnecessary financial investment to correct and re-build an often very complex and sometimes outdated set of records management and corporate governance policies, procedures, and even more daunting – advanced technologies – now available to enhance these initiatives.

A Rich Array of Service Offerings

Somewhat predictably, we find this is often the case when it comes to solo entrepreneurs and small to medium sized businesses, but perhaps surprisingly, from the corporate viewpoint as well, where even with compelling business case support, there may still be little internal incentive to pursue these project initiatives, because they require an initial upfront cost expenditure without a guaranteed matching revenue recapture stream in return. The good news is that as critical IT and IS stakeholders, your place at the table has just been set as one of a King’s Royal Feast, where as members of the King’s court and leaders of the Renaissance, you now have an unprecedented array of e-discovery services and product offerings in the market from which to choose–in-house, on-demand, managed services, and Cloud, or some combination of these services models to provide a custom solution. Taking a nod in part from Right Sourcing strategy, if you find yourself a buyer in this market, you should find e-discovery technology providers more willing than ever before to consider alternative pricing models and negotiate fees and costs.

With e-discovery mergers and acquisitions at an all time high, most providers are working hard to remain autonomous and continue to provide, in particular, their on-demand/per-project e-discovery collection, processing/culling, managed document review and electronic document production services that for many years served as their bread and butter. These services that once earned them a premium profit with multiple non-negotiable fixed price points are now commonly open to à la carte, per phase, flat fee or even fixed bid pricing models. As a result, companies facing these e-discovery hurdles on a more limited basis and therefore less interested in a longer term commitment involved with a managed services or enterprise Cloud services solution, for example, are well advised to negotiate all price points offered and even the pricing structures themselves. Having earned your seat at the table, do not pass up this invitation – enjoy.

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