Throughout the course of our eDiscovery series, we’ve discussed how to balance costs and risk, if DIY eDiscovery is appropriate, if your eDiscovery methods are good enough for the courts and the benefits and drawbacks of predictive coding. And yet what’s becoming more and more obvious amongst IT people, people in leadership and especially lower level staff is that most people simply don’t understand what eDiscovery counsel do, nor grasp why eDiscovery is even important.
Karen Hendrickson, the Chief Practice Support Officer for Hogan Lovells LLP, talked in our full-length show on eDiscovery about companies who try eDiscovery with small staffs, who don’t have IT managers with any legal background and who allow extremely expensive eDiscovery software to sit on the shelf uninstalled because installing it can be complex and disrupt work flow.
“People believe that eDiscovery is more of an impediment than a help,” Hendrickson said, and she argues that you need to have some people high up in your organization who will have side conversations with the people responsible for eDiscovery and who see the importance of this. That’s because litigation is a very real risk to every organization, and many organizations end up paying more than they need to in document review to attorneys when they don’t put the time in to understand what eDiscovery is and how to make the process go smoothly.
Hendrickson says you need someone in your organization interested in technology, but also someone interested and invested in the marketing of your firm. Even attorneys and counsel are now required to fully understand the inner workings of the business they’re representing, and a lack of knowledge is no longer seen as an excuse.
She recommends that if you’re taking some of the eDiscovery burden in-house, you should have a consultant with an actual background in eDiscovery. It should be a person who allows an organization to go about eDiscovery in a thorough and efficient way, not just an IT person who gives marching orders to law firms without understanding what these third party litigation vendors do.
You need to do so with appropriate staff and support. Too many companies try to accomplish in-house what outside firms have spent years streamlining, and they do so with a dearth of man power and funds. “It takes so many people and such a dedicated infrastructure and support team to be able to bring these processes in house, and I just don’t think it makes sense.
If you have a vendor whose sole responsibility is eDiscovery, it could take them five years to develop a process to establish irrelevancy and integrate a front-end interface tool,” Hendrickson said. “By the time you get up and running, you’re already obsolete.”
Rather, the right eDiscovery candidate should do road shows and internal training. They’ll understand that there must be measures put in place to prevent employees from making unnecessary duplicates, such as putting restrictions on saving directly to a computer’s hard drive or to an external flash drive, but they’ll do so by recognizing the frustration can come from a lack of understanding and communication.
“If you have someone backing up their Outlook every week, and then you have 50 PSTs only with a 10 percent differential, you still have to process all those files, and those costs add up quite a bit,” Hendrickson said. “Undue volume is going to follow you, haunt you and cost you a lot of money.”
A person who understands how eDiscovery vendors operate knows how quickly costs can approach seven figures. They’ll create organization and data structure where an IT person might be lost, and they’ll cull irrelevant documents through technology assisted review by getting every party to agree to key terms in advance.
It’s a lot to process, and maybe even a lot to expect of one person on your staff, but eDiscovery won’t have value for your company unless you have someone who understands the value of it.
Here more about eDiscovery in our show on “eDiscovery – Costs, Risks and Remedy.”