The 2019 CLOC (Corporate Legal Operations Consortium) Conference ended last week, and by all accounts it was another great event for an organization that continues to gain relevance and momentum. A story in Thursday’s Legaltech News entitled “Why E-discovery Savings Is About Department Value for Corporate Legal” summarized a CLOC session focused on “streamlining e-discovery and information governance inside corporate legal departments.” At the risk of sounding biased, that seems like a perfect topic to me.
The article’s conclusions from the panel session, namely adding value by wresting control of eDiscovery from outside counsel, consolidating hosting vendors and creating a “living data map”, were all spot on and certainly useful. One way for legal to add enormous value, however, was NOT discussed: collecting far less data as part of the eDiscovery, investigatory and compliance processes.
As we highlighted on an insightful webinar with our partner Compliance Discovery Solutions last Tuesday (which can be viewed here), the way most eDiscovery practitioners conduct ESI collection is remarkably unchanged from a decade ago, an example of which is shown in the infographic below: consult a data map, image entire drives from each and every custodian (e.g. with EnCase), load these many images into a processing application (e.g. Nuix), process these huge amounts of data (most of which is entirely irrelevant), then move this now-processed data into a review application (e.g. Relativity).
This legacy collection process for GRC (Governance, Risk & Compliance) and eDiscovery is wildly inefficient, disruptive to the business and costly, yet many if not most practitioners still use it, most likely because it’s the status quo and change is always hard in the legal technology world. But change here is a must, as this “image everything à then process it all à and only then begin reviewing” workflow causes myriad issues not just for legal but for the company as well:
- Increases eDiscovery costs exponentially. The still-seminal Rand study on eDiscovery pegged an overall cost-per-GB for identification through production of $1,800/GB. While some elements of this price have come down in the intervening 6-7 years, especially processing and hosting rates, data volumes and variety have grown by at least as much thereby negating these reductions. Imaging entire drives by definition collects far more data than could ever be relevant in any given matter – and the costs of this overcollection multiply every step thereafter, forcing clients to pay hundreds of thousands if not millions of dollars more than they should.
- Is extremely disruptive to employees. Forensically imaging a drive usually requires gaining physical access to the laptop or desktop for some period of time, often for a day or two. Put yourself in each of those employee’s shoes: even if you are given a “loaner” machine, you still don’t have all of your local information, settings, bookmarks, etc. – which is a major disruption to your work day and therefore a significant drag on productivity.
- Takes far too long. With forensic imaging of drives requiring physical access to a device, each custodian’s machine must be dealt with. In many collections, custodians are spread across multiple offices, or on vacation, or remote employees, which often extends the process to many weeks if not months. All of this time lawyers are unable to access this critical data (e.g. to begin formulating case strategy, negotiating with opposing counsel or a regulator, etc).
- Creates unnecessary copies of data that could otherwise be remediated. An often-overlooked byproduct of over-collection is that it creates another copy of data that is outside of most (if not all) data remediation programs. For companies that are regulated and/or encounter litigation regularly, this becomes a major headache and undermines data governance and remediation programs.
- Forces counsel to “fly blind” for months. Every day the IT and legal teams are spending forensically imaging each custodian’s drives, then processing it, and only then loading it into a review or analysis application is a day in-house and outside counsel are flying blind, unable to look at key data to begin constructing case strategy, conduct informed interviews, negotiate with opposing counsel (e.g. on the scope of a matter, including discovery) or interact with regulators. This is incredibly valuable time lost for no value received in return.
- Using forensic tools for non-forensic processes is unnecessary overkill. The irony of this “image everything” approach is that it is extreme overkill: it would be like a doctor whose only procedure to get rid of a mole was to cut off the arm. Forensic images can always be utilized on a one-off basis in narrow circumstances where there are concerns about possible spoliation of evidence, but for the vast majority of circumstances, a forensic image is completely unnecessary.
As was a focus at the recent CLOC conference in Las Vegas, corporate legal operations are quite correctly focused on showing the value legal is bringing to the business. However, there is still a fundamental change they need to make to how they handle the collection of ESI for eDiscovery, GRC and privacy purposes that would be an enormous value-add to all parts of the company, including legal: ending the systematic over-collection of data. How this can be done quickly and cost-effectively has been the subject of previous blog posts, but will be addressed in detail in the next few weeks as well.