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: E-Discovery In the Trenches

Only the Company Can Know Itself

By Jerry Bui

In the latest law.com article, Keeping Your Firm's E-Discovery In-House, Dale Buss recognizes that there's strong sentiment in the industry for "legal departments [to] establish as much as possible of the ESI-management function in-house as swiftly as they can [because] only the company over time truly can know itself". Robert Bjornsti, VP of AXA Equitable Life Insurance Co., echoed this sentiment earlier in the year at LegalTech NY when he delivered the day two keynote address on "Paradigm Shift -- Corporate Use of Legal Support Services". The argument here is that insourcing e-discovery work not only reduces cost, but is more effective. A corporation can fine tune it's response to a legal hold by tapping into the company's ERP system. Leveraging the HR metadata resident in enterprise databases gives you insight into a custodian's business function, the nature of the data that they keep, and the level of privileged and/or confidential information contained therein. "That way, when you get a discovery notice, the company can be very precise, not shotgun, about where the right data is." Performing this work behind the corporate firewall also enhances security and control. It allows corporations to reuse data for concurrent and pending matters within their litigation portfolio.

This is no small undertaking. First of all, e-discovery software is mostly proprietary and is geared to reside at the technology vendor's hosting facility. A lot of these homegrown solutions were developed by the technology vendors themselves and were invented to serve as a secondary offering to their consulting services. The software platform was never designed for general, off-the-shelf deployment within a company's network. Secondly, IT departments aren't equipped to deal with the high stakes nature of e-discovery work; and the personnel aren't suited at all to deal with attorneys and attorney requests. If the pendulum truly is swinging back from outsourcing to insourcing, it could come crashing in through corporate walls creating more damage than originally anticipated. For the enterprise, however, savvy with litigation support work and a penchant for detail, it may very well be worth the effort. The corporation must understand that the effort will require an entirely new business function -- not supplanting the IT department, but working hand-in-hand with it. New (and very large) budgets will need to be allocated for hardware and people. Planning for an in-house staff of e-discovery professionals and a handful of reliable, independent consultants will go a long way in easing the transition.

Full post as published by E-Discovery In the Trenches on April 17, 2008 (boomark / email).