Should E-Discovery Be Brought In-House?

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By Paige Zandri
| Legal Process Management

E-Discovery, Binoculars

For many attorneys, the word “discovery” means hundreds of hours huddled around endless boxes of documents. While e-discovery software can somewhat soothe the painful process, many companies still continue to rely on outside counsel for their discovery needs, vastly increasing their legal spend as a result. The trend now, though, is to bring the discovery process in-house and to implement an e-discovery software solution. Here are a few guidelines for you to consider if you are interested in the move.

Whether to Bring E-Discovery In-House

First, sending all of your discovery-related work to outside counsel is expensive. They are not as well positioned as your in-house team to focus their efforts on the systems and business lines most critical for the litigation at issue. In many cases, delegating to outside counsel can lead to over-collection and processing. If you are able to take advantage of current e-discovery trends and applications, it might make sense from an efficiency perspective to do it in-house.

On the flip-side, e-discovery software can be expensive. Smaller companies with less regular or less data-intensive litigation may find that the costs of e-discovery software and the demands on existing employees of bringing this function in-house may outweigh the savings generated from not hiring outside counsel. Consider both your litigation history and potential exposure, as well as the amount of data you predict future cases will generate. Will there be economies of scale when internalizing the e-discovery process, or will you be frustrating your budget and your team?

Establish Procedures Before Litigation Hits

If you decide it’s worthwhile to take e-discovery in house, avoid waiting until your company gets hit with a lawsuit to set up the software and necessary data management procedures. For most companies, setting up e-discovery software is simple, but establishing a culture of data management conducive to your new software and the discovery process as a whole is typically more involved and complex. When planning, consider the following common issues:

  • How can your company’s culture regarding electronic data management be improved so as to facilitate the discovery process before it occurs?

  • Who manages the current IT infrastructure, and how can they inform the implementation of your company’s e-discovery software and data management plan?

  • Once litigation is initiated, how will your company message data retention to your employees so as to meet legal requirements, avoid evidence spoliation, and facilitate preservation and collection using the e-discovery software?

  • How will your e-discovery software facilitate data collection so as to minimize interrupting your employees from their work?

  • After data preservation and collection has occurred, how can your company best use its e-discovery software to process and review data?

By discussing these questions in the planning phases of software implementation and execution, and before litigation arises, your company can ensure a more efficient e-discovery process.

Find a Trusted E-Discovery Partner

There is now a litany of e-discovery software vendors, and choosing among them might seem daunting. However, your company will rely on this vendor as a partner throughout an already frustrating litigation process, so you will want to find a vendor with a strong reputation that can meet the unique needs of your company. Ask any e-discovery vendor that you are considering to explain in simple terms how their software approaches data collection, processing, and review. Any vendor unwilling or unable to explain their process should be avoided; after all, you may need to be explain this process in detail to your adversary and a judge during the discovery phase. In fact, it is your professional responsibility as in-house counsel to be able to answer these questions competently. Your company will want an e-discovery vendor that can support you in understanding and explaining this process to others.

E-Discovery Software Will Not Solve All Your Discovery Problems

Unfortunately, implementing e-discovery software will not, by itself, eliminate all of the headaches that accompany the discovery process. As suggested above, a successful process also depends on the cultural shift toward efficient data management and processes that your team and organization will need to adopt in order to make it work well. That said, if you operate in a litigious environment and your team has the bandwidth, evaluating your in-house e-discovery options is a worthy exercise to reveal potential cost savings with your budget for outside counsel.

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