Now don’t excited – I’m not providing the ultimate answer  – at least not in this space.  However, I will give you some things to consider that might prove useful in terms of cost containment and being ahead of the curve . Before we start talking about the solutions, let’s discuss why e-discovery needs some practical solutions.

  1. U.S. Litigation, specifically discovery costs continue to grow.
    “Specifically, the Searle Survey found that average total outside costs of litigation per company rose 73% from $66 million in 2000 to $115 million in 2008, representing 9% growth per year. “(A Toolkit For Change: How The Federal Civil Rules Advisory Committee Can Fix A Civil Justice System “In Serious Need Of Repair”)
  2. U.S. costs are disproportionate to non-U.S. costs.
  3. Discovery is inefficient.

Now I want to concentrate on #3.  Inefficiencies drive me crazy.  And there is always a way to increase efficiency.  In e-discovery, the vendors are improving their ability to cull out the non-relevant documents.  But that is still not enough.  I think getting in front of the problem will be the key to improving inefficient e-discovery processes.

There was quite a bit of research last year based on surveys that pointed out problems and lots of possible solutions were discussed.  In late 2010 I began noting that one solution, which Answer Maven firmly agrees with, was being proffered: eDiscovery should be a part of business process.

Of course that is easier said than done.  That’s where practical preparation comes into play.  You may wonder what on earth you could do to practically prepare for e-discovery, well that’s an easy answer and a complex application.  It’s content or records management plus.

Many businesses have responded to Sarbanes-Oxley by putting in place records retention policies but rarely do those policies reach into data mapping and content management protocols; especially for small to mid-sized businesses.    That’s where the complexity enters.  It’s not a single department solution.  Collaboration is a necessity for content management and you need the right leader for this type of project.

Source: EDRM Projects: http://edrm.net/projects/imrm

The Forbes 200 companies may be ahead of the curve by having e-discovery processes in place.  Unfortunately, mid-sized businesses who have the need but not the means are the ones still being caught off-guard by the necessity to respond to a discovery request.

So, I’ll let you think about that a bit before coming back to discuss ways to solve this problem preemptively.

Constance Ard January 3, 2011