Has your law firm implemented solutions for managing eDiscovery requests? Here's what you need to know about establishing a process and choosing...
What is eDiscovery?
In this blog, we will have a look at the current situation of eDiscovery, why many organizations struggle with ...
In this blog, we will have a look at the current situation of eDiscovery, why many organizations struggle with efficient processes, and what can be done to better align the various systems and stakeholders to provide faster turn-around times.
- eDiscovery, the process of collecting and producing electronic data for legal cases, has become increasingly complex as organizations use multiple communication channels such as email, instant messaging, and social media.
- Three different product categories have emerged to address this complexity: archiving platforms, eDiscovery frameworks, and case management tools, but they often have overlapping features and don't work well together.
- A big issue with eDiscovery is the sheer volume of data and how it is scattered around many systems, making it difficult to search and collect relevant data.
- Many organizations have chosen to work with eDiscovery service providers, but this does not address the root cause of the problem.
- Turnaround times between receiving a subpoena or eDiscovery request and completing the assessment are often problematic and seen as a major risk.
Not that long ago, an eDiscovery process only included 3 things:
- A scan of the custodian’s laptop
- A search against some file shares
- An export of the user’s email inbox
These data sources only had rudimentary e-Discovery capabilities: Searches were slow, no audit trails would be created and there was no concept of a legal hold, apart from copying the data to the legal team’s server.
To mitigate these shortcomings, 3 different product categories emerged over time, changing how eDiscovery works:
- Archiving platforms for electronic communications
- eDiscovery frameworks to index file shares and laptops in order to preserve and collect potentially relevant data.
- Case management tools for putting everything in context and presenting the case
Unfortunately, these product categories have created two big caveats: They have overlapping features, and they don’t really work well together.
- Many Email Archiving Systems have complex analysis and review capabilities that overlap with Case Management systems. But you still need the latter for other data and for paper trails.
- eDiscovery Frameworks can crawl mailboxes and collect chats, but they can’t provide the fidelity and completeness of an email and communications archive.
- Case management systems have unique capabilities for analyzing and reviewing, but they are slow and expensive when used for large volumes of data.
At the same time, the electronic discovery world has become much more complex from both a technology and legal process perspective. Most organizations use more than 5 communications channels, such as Teams, Zoom, Slack, and various social media outlets, such as LinkedIn, Instagram, WhatsApp & Facebook (messenger). These are much more difficult to capture and understand, than an email thread. Unlike email, they are not standardized, have more complex features, and create more metadata (like emojis, GIFs, and liking posts).
In this new and complex world of multi-channel communications, the frictions and incompatibilities between different solutions are a major burden for in-house legal departments.
In fact, many have chosen to work with eDiscovery service providers to sort out the electronic data management and discovery mess, without addressing the root cause of their problems. That is another costly way of creating an “oversized eDiscovery” regime.
Why Many Organizations Struggle With eDiscovery
Probably the biggest issue is the sheer volume of data and how it is scattered around many systems. Many of those had their prime a long time ago. It is not uncommon for organizations to have 100s of Terabytes in systems that cannot be efficiently searched and require a lot of management to keep them alive.
Once you drill deeper into that data, you often find that a large proportion of that content is completely irrelevant. A 2019 airline newsletter, or the “joke of the day” from 2017 has very little relevance for the organization today (apart from the latter potentially being funny!)
And because that hoarded data sits in so many places, it requires multiple tools to search and collect from them, each with a complex search interface, its own way of creating export files, and incompatibilities when exchanging data between them.
For legal teams, this means they need to find people trained to use those tools and who can carry out all these manual processes. Often that requires long discussions with the internal IT department or employing a 3rd party eDiscovery provider.
In any case, the turnaround times between receiving a subpoena or eDiscovery request and finishing the Early Case Assessment are problematic and often seen as a major risk.
Skipping this complexity by simply exporting a large volume of data into the Case Management tool, will not help either, because the export is the true bottleneck and most tools are licensed based on the data volumes, which can incur significant license costs.
What is Right-Sized eDiscovery?
We have coined “right-sized” eDiscovery as an umbrella term for several initiatives, designed to make e-Discovery faster, cheaper & easier to use so that in-house legal teams are empowered to either take the majority of legal cases back into their own hands or streamline their collaboration processes with the eDiscovery service provider of choice.
Right-sized eDiscovery starts with a list of systems that are the biggest burden to the organization when it comes to understanding and discovering the information they contain.
As many organizations have adopted a “cloud first” strategy, this will include a number of old on-premise systems, such as old Lotus Domino Email servers or legacy archiving and ECM platforms such as Source One or Documentum.
These systems can often be consolidated on a modern cloud-native data retention platform, driving down the IT management costs, while making the content available to the modern eDiscovery tools of choice.
Once the data is stored on an open, cloud-native platform, IT organizations can address the problem of data hoarding and over-collecting, by deploying intelligent, AI-based tools that analyze the content and meta-data (for data types that can be matched with a high level of confidence) and adjust the retention policy for those electronic records accordingly: Expiring email shopping newsletters within 12 months, while keeping contracts and patent related information for 25 years.
And of course, the data would be tagged with various labels, so a mail containing a CV or job application would be tagged with “HR” and “PII”. This new level of content awareness can speed up first-level culling and Early Case Assessment dramatically while reducing the number of document reviewers and/or the cost of external services.
At the core of our Right-sized eDiscovery initiative is the notion of “supporting the ecosystem”, instead of trying to find one solution that fits all needs. Any modern eDiscovery solution should be aware that it will need to work with other, often competitive tools from other vendors to achieve the best outcome for the customer’s legal team.
Instead of sending PSTs and uploading ZIP files to FTP-Servers, customers should expect an API-level integration to transfer information from their communications archive directly into their Case Management software or even into the eDiscovery framework at their external service provider. Only by integrating on an API level, all metadata can be transferred, data integrity guaranteed, and manual errors reduced.
Ideally, that ecosystem approach is not limited to the data transfer: Instead of providing a second-rate legal hold management just for the content under the vendor’s control, it seems a better idea to integrate with the leading Legal Hold Management solutions on an API-level and apply the global legal hold policies to that repository.
In this respect, right-sized eDiscovery means “less is more”. It is pointless to expect a legal team to master 5 different Review-interfaces or to understand the “AI Assisted-review” from 3 different vendors.
For our own “Expireon” solution, we have deliberately decided against providing any review-related functionality or complex legal-hold workflows. Because those already exist, and legal teams know how to use them. Why would we frustrate those customers by providing something similar, requiring additional training, and only useful for the data under our control?
By integrating with the ecosystem, we can reduce training costs, skip manual processes, and speed up the turn-around times until the Early Case Assessment is completed.
This brings us to the last, but probably most important benefit: Right-sized eDiscovery is cheaper … for everybody.
With a consolidated environment, AI-based intelligent retention, and content-based tags and labels, data management costs can be reduced by up to 60% compared to keeping your existing legacy systems up and running.
And less overlap, reduced training requirements, and cutting out manual tasks help legal teams to stay within budgets, no matter if the eDiscovery is carried out in-house or managed by a service provider.
And for solution providers like Cloudficient it means that instead of spending years of engineering time on our own review interface, we can focus on our strengths in the data management area and provide a better product at a more compelling price point.
What about Microsoft Purview?
The list would obviously not be complete without having a look at Microsoft’s Purview, as an all-encompassing compliance suite for the Microsoft cloud. On one hand, Microsoft provides exactly the level of connectivity and extensibility that would make it a great example for an integrated & “right-sized” approach.
On the other hand, Microsoft now charges for accessing Teams chat and other content requested by any Compliance tool through the Graph API, which is exactly the opposite of “supporting the ecosystem”.
These hurdles would be less significant if Microsoft Purview was good enough for large organizations that have many cases and large review sets. Unfortunately, Purview relies on Microsoft Advanced Indexing, when building a search index for Exchange Online mailboxes.
This index is built on demand on a shared cloud platform with index times highly dependent on server load and (other tenants) index requests in the queue. We have seen organizations waiting for days before a search can be confidently run, which needs to be urgently addressed by Microsoft before it can be at the heart of the eDiscovery software world.
To us, it remains to be seen whether these caveats will be resolved, which part of the compliance solution market Microsoft will embrace, and which solutions will be locked-out so that Redmond can gain and sustain a competitive advantage by “owning” the data and the business, security and compliance toolkits on top of it.
In any case, it seems like a terrible lock-in if companies don’t create an independent copy outside of the Microsoft Cloud. Because charging a company for accessing its own data, is already a big loss of data sovereignty.
So, Does Right-Sized eDiscovery Even Exist?
As we have mentioned before, we have created “Expireon” as the first product to incorporate all the ideas and requirements of Right-sized eDiscovery.
- onboard data from legacy systems automatically
- understand the content using AI and Deep Learning
- tag content and adjust retention times
- connect to other legal tools via API
- read settings, search parameters, and export data directly
- save your organization 60% in data management cost
- reduce the complexity for your legal team
- help you take cases back in-house
- make third party eDiscovery more affordable
But we don’t believe that this is just about Cloudficient and Expireon. Right-sized eDiscovery is rather an approach that organizations should demand from all their suppliers. The age of compliance islands is nearing its end.
The future is open, automated, and interconnected. And a lot simpler!
With unmatched next-generation migration technology, Cloudficient is revolutionizing the way businesses retire legacy systems and transform their organization into the cloud. Our business constantly remains focused on client needs and creating product offerings that match them. We provide affordable services that are scalable, fast, and seamless.