I read a report yesterday called E-Discovery View from the  Front Lines by the Institute for the Advancement of the American Legal System.

This report provided a thorough overview of the growth in importance of E-Discovery to the legal system, a review of how e-discovery has changed in recent years, some interesting discussion of “litigation holds” and other best practices as well as some recommendations for change.

One of the interesting things I noted while reading this and several other publications related to e-discovery in the past few days is the emphasis on fear surrounding e-discovery.  It seems that law firms fear e-discovery due to costs, general counsel fears e-discovery due to costs and businesses fear e-discovery due to costs.  Some would say that if everyone is concerned about costs perhaps ways to reduce costs should be employed more consistently.

I don’t think that anyone affected by e-discovery is unwilling to do find and employ ways to reduce costs.  I think that e-discovery has been mainly reactionary rather than pro-active for all involved, including vendors.  An opportunity to make money by employing technology to manage a process for ESI (electronically stored information) presented itself and vendors adapted.  Law firms often seek out-of-the-box applications in order to solve problems and unfortunately, I don’t think that enough strategic planning is employed before choosing a solution.  This is of course, not the fault of the firms.  In my experience, law firm innovations are often pushed by client demand and all too often that demand is prioritized without the client having done their own preparedness.

A few years back this used to be the problem of big companies and large firms but with the reality of less than .1 percent of information created on paper this is everyone’s problem.  So you may ask what should you do to minimize the fear.

A few practical tips would be:

  • Plan based upon ESI work-flow
    • This plan should be a cross-functional team plan that brings the best planners from IT, info centers, and records management into the room with the strategic business planners
  • Don’t over retain your ESI, use the plan
  • End redundancy in ESI if it is stored at a departmental level, not every staff member should be required to retain the info
  • Investigate vendors and strategic who have solutions, not simply applications
  • Staff for ESI and E-Discovery – Having someone on board who understands the bigger picture for the Industry and information flow from creation to use is a no-brainer in reducing up-front costs.