1 White Paper Actionable The EeDiscovery E-discovery E-discovery Maturity At Any Model: Stage: SymantecSymantec s Flexible Solutions Archiving from and Archiving Symantec E-discovery and discovery Solutions Solutions for Any Stage By Katey Wood, Analyst By By Katey Katey Wood, Wood, Analyst Analyst March 2012 April June This This ESG ESG White White Paper Paper was was commissioned by by Symantec and and is distributed under under license from from ESG. ESG. This ESG White Paper was commissioned by Symantec and is distributed under license from ESG. 2012, 2012 The by Enterprise The Enterprise Strategy Strategy Group, Group, Inc. All Inc. Rights All Rights Reserved. Reserved. 2012, The Enterprise Strategy Group, Inc. All Rights Reserved
2 White Paper: The E-discovery Maturity Model 2 Contents Introduction... 3 Determining Your Priorities: The E-discovery Maturity Model... 3 Where to Start?... 3 First-time Litigants: Reactive Solutions... 4 Identifying the Costs... 4 How to Save: Culling Information... 4 Symantec Solutions and Benefits... 4 Repeat Litigants: Proactive Solutions... 4 Identifying the Costs... 4 How to Save: Proactive Collection, Unified Platforms, and Early Case Assessment... 5 Symantec Solutions and Benefits... 5 Highly Regulated or Serial Litigants: Long-term Information Governance... 6 Identifying the Costs... 6 How to Save: Information Governance... 6 Symantec Solutions and Benefits... 7 The Right Tool at Any Stage... 8 Buying Considerations... 8 The Bigger Truth... 9 Tying It Together: A Manageable E-discovery Business Process... 9 Appendix: Symantec Solutions Clearwell ediscovery Platform Enterprise Vault Enterprise Vault.cloud All trademark names are property of their respective companies. Information contained in this publication has been obtained by sources The Enterprise Strategy Group (ESG) considers to be reliable but is not warranted by ESG. This publication may contain opinions of ESG, which are subject to change from time to time. This publication is copyrighted by The Enterprise Strategy Group, Inc. Any reproduction or redistribution of this publication, in whole or in part, whether in hard-copy format, electronically, or otherwise to persons not authorized to receive it, without the express consent of The Enterprise Strategy Group, Inc., is in violation of U.S. copyright law and will be subject to an action for civil damages and, if applicable, criminal prosecution. Should you have any questions, please contact ESG Client Relations at
3 Introduction White Paper: The E-discovery Maturity Model 3 Imagine that your organization has just been served with a subpoena to produce data related to a dispute. E- discovery demands are broad and extend beyond just , encompassing other data sources. Now consider that the timeframe for your response is less than 30 days. How will your organization meet this challenge? Are you prepared to respond to litigation when it hits? Do you have process and technology in place to respond to e- discovery requests defensibly, including issuing legal holds, preserving data, and maintaining chain of custody? Do you have a handle on where your data is located, who in the organization has ownership, how much exists, how long it should be retained, and how to retrieve it? Have you archived and audited your data proactively to retain only what you need and to find and deliver it quickly? Or have you never been sued and have no idea where to begin? Coping with e-discovery costs, risks, and deadlines is overwhelming. Whether at first onset or as an ongoing process, litigation, regulatory requests, and internal investigations can significantly impact an organization: Responding can disrupt operations for end-users and IT, while outsourcing parts of the process to service providers is expensive. Processes must be supervised and testified to by experts and may lack court defensibility if not conducted correctly. Identifying and collecting data is challenging due to the volume of information and the growing number of places it resides, including mobile devices, the cloud, and social media. Technology automation can significantly reduce the cost, risk, and effort involved in e-discovery at many stages of the process. Consider the savings from four organizations using Symantec s Clearwell ediscovery Platform: American Airlines estimates it saved $73,600 per case using the Clearwell Identification and Collection Module. Barnabas Health reduced its data volumes by 90%, saving more than $1 million on a single case. The Home Depot saved $411,000 on a single matter by in-sourcing data processing and document review. NBC Universal shortened its response time from ten days to less than two days utilizing a more automated process with Symantec solutions. This white paper explores major pain points in e-discovery for first-time litigants, repeat litigants, serial litigants, and highly regulated companies. Even though this white paper focuses on litigation, the points it makes are equally valid for organizations performing e-discovery for other reasons. Further, it discusses solutions for automating efficiently at different stages of the process, including the cost-saving and risk-reduction benefits. Finally, it provides recommendations for an effective, proactive archiving and e-discovery posture, discussing options available in the context of Symantec Enterprise Vault (on-premises archiving software), Enterprise Vault.cloud (a hosted archiving service), and the Clearwell ediscovery Platform. Determining Your Priorities: The E-discovery Maturity Model Where to Start? Corporate litigants may be more (or less) prepared for e-discovery due to differing levels of experience and preparation. There are three main types of organizations based on litigation profile, each with different priorities related to their e-discovery process: First-time litigants often seek immediate reactive cost relief by automating parts of the process. Repeat litigants need proactive solutions with less operational disruption, better oversight, and greater defensibility.
4 White Paper: The E-discovery Maturity Model 4 Serial litigants and highly regulated businesses want comprehensive information governance solutions to reduce risk, limit overall litigation costs, and ensure ongoing compliance. The goal for most organizations is to evolve from an ad hoc, chaotic response to a state of better ongoing litigation preparedness, with more proactive, standardized processes. First-time Litigants: Reactive Solutions Identifying the Costs When companies with minimal e-discovery technologies or processes are hit with a major litigation event, they often need immediate cost relief to reduce the price of e-discovery. Duke University s 2010 survey of litigation costs at major companies found that from 2006 to 2008 alone, the average discovery costs per case ranged from $621,880 to $2,993,567, topping $2,354,868 to $9,759,900 at the highest end. 1 These costs are only growing. Electronic discovery is consistently cited as the top litigation area for increased spending among corporate litigants in the Fulbright & Jaworski Eighth Annual Litigation Trends Survey Report. 2 The most expensive step of the process is attorney review, when irrelevant data can add considerably to discovery costs. The Duke survey found that in major cases going to trial in 2008, the ratio of pages discovered to pages entered as exhibits at trial was as high as 1,000 to one and anecdotally, the ratio is often closer to 10,000 to one. How to Save: Culling Information Investing tactically in e-discovery technology to cull information can significantly reduce other downstream e- discovery costs, including external document-review expenses. Filtering irrelevant data and pre-tagging it in-house can cull evidence down to its most responsive kernel before passing it to outside counsel for review. Thirty-five percent of corporate counsel surveyed by ESG had the goal of culling data prior to document review. 3 Symantec Solutions and Benefits Cull and filter irrelevant data for review savings. The Clearwell ediscovery Platform offers deduplication as well as sorting by domain, file type, and date, allowing users to eliminate irrelevant files such as.exe files or non-business . Conduct an internal first-pass review and tag potentially relevant data to streamline external review. Customer benefits: Customers report fast processing with anecdotal success in culling data sets down from 139,000 to 1,200 in under two hours. 4 Other customers have reduced processing costs by 63% and data by 80%, even reducing documents sent to review by 90% overall on one case, from 1,150,000 to 57,500 at a cost savings of $411, Repeat Litigants: Proactive Solutions Identifying the Costs Culling information as a tactical measure can greatly reduce the costs of litigation by limiting data volumes going into attorney review. However, serial litigants with repetitive e-discovery requests have additional requirements, many times because they re attempting to in-source elements of e-discovery such as identification, collection, and preservation. 1 Source: Duke University, Litigation Cost Survey of Major Companies, Source: ESG Research Report, e-discovery Market Trends: A View from the Legal Department, October All other ESG research statistics come from this report unless otherwise indicated. 4 Source: Symantec white paper, Archiving and ediscovery: Real World ROI from Soft Cost Savings, November Ibid.
5 White Paper: The E-discovery Maturity Model 5 More than half of ESG research respondents cited pain points in preservation and collection, including collection from new data sources, non-indexed data, and short timeframes with heavy staffing requirements to support it. Sixty-three percent of corporate counsel surveyed by ESG cited improving their preservation, collection, and datamapping operations with IT as an important priority. Yet processing and preparing e-discovery data sets for review, particularly for uncollected data in the wild, can require additional technologies. Using separate point tools means loading data into multiple data environments, creating issues with data migration, potential loss, and chain of custody in handling. Additionally, some archives and platforms cannot support every data type making the process especially taxing for collecting and preserving data from the cloud, social media, structured data, SharePoint, or other non- formats and locations. All aspects of e-discovery are expanding to Salesforce.com, online file sharing tools such as Box and Dropbox, and hosted versions of traditional applications such as Office 365. In fact, ESG research shows that 74% of organizations plan on increasing their investment in cloud computing services, with much of the funding focusing on software-as-a-service solutions. 6 How to Save: Proactive Collection, Unified Platforms, and Early Case Assessment Proactively collecting data into a central repository can help considerably with this problem. Proactively storing data in an archive simplifies searching during investigations and can ease retrieval with proper production capabilities. Many repeat litigants use archives for preservation and collection 63% of corporate counsel surveyed by ESG do so currently, while 21% plan to in the next two years. The use of archives can also secure evidence for legal hold centrally by enforcing retention. A unified technology platform for responding to e-discovery minimizes the cost and disruption of an ad hoc response, while creating more defensibility in internal processes. Unified e-discovery platforms can replace several point tools in many cases, centralizing activity, minimizing the risk of multiple data environments, simplifying chain of custody, and tracking project activity and expenses. Platforms have gained substantial popularity as the market has matured. One in four corporate counsel surveyed plan to purchase such a platform in the next two years. Early case assessment (ECA) can also dramatically reduce costs by using search and analytics to gain insight into case facts from the onset of litigation. An effective early case assessment allows the legal team to make informed decisions on whether to settle a case in its early phases, reducing downstream e-discovery costs considerably. Symantec Solutions and Benefits Archive data proactively in an on-premises or cloud archive. Using Enterprise Vault and Enterprise Vault.cloud, users can archive messages, attachments, and all critical information sources onpremises or in the cloud into a searchable repository for compliance, legal, or internal investigations. For organizations in industries subject to frequent regulation and lawsuits, the need to retain and search across a broad range of information sources is especially acute. Both Enterprise Vault and Enterprise Vault.cloud archive the most commonly used electronic communication tools including Microsoft Exchange, Microsoft Office 365, Microsoft SharePoint, IBM Lotus Domino, BlackBerry, instant messages, and social media such as Facebook, Twitter, and LinkedIn. Customer benefits: Simplify search and collection of pre-archived data, or create a library of potentially litigious data. Preserve evidence in multiple data formats under legal hold centrally to ensure its physical security while deduplicating it to minimize data volume. Collect centrally from desktops and loose files with the Clearwell ediscovery Platform Identification and Collection module. The Clearwell ediscovery Platform supports collection of many data formats from common repositories and locations, including the cloud and social media. The Clearwell ediscovery 6 Source: ESG Research Report, 2012 IT Spending Intentions Survey, January 2012.
6 White Paper: The E-discovery Maturity Model 6 Platform is the only software supported by Symantec able to place information in Enterprise Vault on legal hold and to directly collect and filter information from the archive. Customer benefits: Automating collection reduces manual response and prevents duplicate effort. Targeting collections by metadata or keyword limits overproduction and downstream costs, while early case assessment can provide guidance on whether to settle. Choose platforms with modular options and extensive reporting. The Clearwell ediscovery Platform includes modules for identification and collection, preservation, legal hold notification, review, and production, as well as comprehensive reporting dashboards. Customer benefits: A modular platform can support your process as you evolve. Extensive reporting and dashboards allow tracking of case progress, data volumes, and costs both within the case and across all cases. Highly Regulated or Serial Litigants: Long-term Information Governance Identifying the Costs Rational costs and internal response are important drivers for automating e-discovery processes. But for longerterm benefits, highly regulated companies and serial litigants need a solution that will have a broader positive impact on their overall risk profile, their e-discovery effectiveness, and, ultimately, their bottom line. Information governance encompasses the technology and practices involved in actively managing what data is retained in the enterprise, where and for how long it is stored, how it is protected, and who has rights to access it. Whether for e-discovery readiness, compliance, data protection, or general information management, a comprehensive information governance policy is beneficial for searching, protecting, classifying, storing, retaining, and expiring data. Conversely, neglecting it incurs costs and risks: Disorganized enterprise systems without clear demarcation of information storage and ownership exacerbate the cost, time, and efforts of identifying and retrieving evidence for e-discovery and regulatory response. Unchecked data retention raises the volume and cost of e-discovery and regulatory productions, and exposes the organization to legal risk stemming from data kept past any retention requirement or business value, which could be requested in future litigation. Data loss or theft puts a company s confidential assets as risk, while security breaches involving personally identifiable information can result in recovery and restitution costs and reputation damage. The threats posed by these possibilities and in many cases, eventualities demonstrate the dark side of big data, particularly when e-discovery is involved. In fact, data is not always an asset, and it may even pose an ongoing liability to the business. Even with practical information governance policies and mechanisms in place, many corporations still do not delete data when it reaches the end of its mandated retention period, leaving it discoverable in legal matters or regulatory requests. Lawsuits resulting from over-retention cost one organization $20 million in legal fees, damages, and lost reputation due to smoking gun s that had no legal, regulatory, or business reason for retention prior to the lawsuit. 7 Even if the action is not related to a litigious process, the discovery of irrelevant and junk data adds substantially to downstream collection, processing, review, and production costs. How to Save: Information Governance Serial litigants and highly regulated companies quickly realize the cost of poor information management in downstream e-discovery. In fact, defensible deletion was the top priority for internal e-discovery processes among 7 Source: Symantec white paper, Archiving and ediscovery: Real World ROI from Soft Cost Savings, November 2011.
7 White Paper: The E-discovery Maturity Model 7 corporate counsel surveyed by ESG, reported by 69% of the respondents. However, the status of defensible deletion as a priority rather than a reality could reflect not only the urgency of the problem, but also the difficulty in executing on it effectively. Information governance means more than simply using an archive for proactive collections or storage management which, as noted, many corporate counsel are already doing. Rather, information governance is the ability of organizations to appropriately secure, store, and discover information according to its importance to their business. In all cases, data should be analyzed and classified according to formal criteria determining its business value and risk. From there, enterprise stakeholders from legal, IT, records management, and other business units can collaborate to establish a coherent policy in dealing with its storage, retention, expiration, access, and protection. The policy and schedules should be continually updated to stay current with regulatory and business needs. They should also be well documented, as should the process for enforcing and executing on policy decisions over time. The complications in executing on information governance lead many experts to advise approaching the problem by first tackling low-hanging fruit file shares needing cleanup, archives slated for migration, data being considered for a move to the cloud, or other targets with a high return-on-time investment. From there, enterprises can make informed decisions about what other IT assets pose the greatest urgency for governance and protection. Symantec Solutions and Benefits Increase e-discovery preparation with proactive measures: Close the loop on best practices through data archiving and automated classification potentially tagging data for compliance or e-discovery as it comes in, depending on its contents and risk profile. Create a library of potentially litigious data for better accessibility, such as evidence from prior cases or the CFO s for the last ten years. Customer benefits: Archived data is more readily retrievable, and it can be reviewed proactively for potential exposure or threats. Symantec s Data Classification Services module can provide a rich analysis of in transit by comparing content against nearly 100 policy definitions, which can then determine whether an item should be archived and for how long. For example, s containing contract-related attachments might be stored for seven years, while inappropriate humor can be immediately purged. Improve information management with comprehensive policy: Apply policy for retaining or expiring information appropriately according to its contents and business value. Customer benefits: Classifying data using an intelligent retention policy can streamline the process of discovery, reduce the risk of spoliation for data destruction or exposure of data retained past its mandate, and reduce storage costs by freeing up capacity. Symantec can categorize data based on usage, access rights, business sensitivity, and compliance and legal hold requirements. Limit risk exposure with defensible expiration: Perform retroactive cleanup of data past its regulated retention period or usefulness. Consider strict retention guidelines to keep only data mandated for preservation or with concrete business value, depending on risk appetite. Customer benefits: Symantec Data Classification Services could help an organization determine that 7% of the information in its archive was critical, 13% was garbage, and the rest fell somewhere in between. After the data is classified, the company can decide how to store or expire it, and how much freedom it should give employees to access and distribute it. Secure and protect access to data appropriately to lower risk of data breach, theft, or leaks. Customer benefits: Symantec Data Insight can identify usage patterns, ownership, and top users of a particular file without re-indexing, allowing IT to apply appropriate access privileges to minimize exposure. Symantec Data Loss Protection controls the access to and distribution of information, and it identifies suspicious access of sensitive files or leaks outside the company.
8 White Paper: The E-discovery Maturity Model 8 The Right Tool at Any Stage Buying Considerations Consider the following options in selecting the appropriate tool for your needs: Solutions in line with your litigation profile, reflecting the overall volume of cases and evidence you expect going forward, as well as your priorities for cost, risk, and operational effort in servicing them. A modular platform that can grow with you as you create a more mature process through flexible deployment and pricing. This can be an e-discovery platform with independent modules for different steps in the process, or an archive supporting storage management/retention/deletion and advanced e-discovery capabilities. In fact, there may be more you can do, even with existing investments. A single, integrated platform for e-discovery that can reduce integration problems related to multiple data environments, can improve reporting across functions, and can provide dashboards for better project management and cost forecasting. A stable software provider with robust support for different data formats and collection repositories (including the cloud), as well as a history of agile R&D in meeting new court and customer demands as they arise. Providers with both proactive and reactive technology that let you close the loop on go-forward information governance through an archive, classification, retention, and deletion policy curing the larger illness of poor information management that results in e-discovery problems. Using tools both familiar to service providers and available for in-house use can help corporations transition gradually to an in-house e-discovery process. They can also allow easier overflow services on especially large cases. Providers with both cloud and on-premises options offer flexibility in pricing, usage, scalability, and deployment. Make sure cloud providers are reputable, that they have developed architectures suitable for e-discovery and information governance, and that they give robust assurances for data hosting and security, as well as retrieval timeframes and formats. Several considerations go into deployment choice as well.
9 The Bigger Truth White Paper: The E-discovery Maturity Model 9 Tying It Together: A Manageable E-discovery Business Process Corporate litigants face many challenges to coordinate their e-discovery business processes. In choosing technology investments, litigants often have different priorities and points of entry, all aimed at lowering cost, improving defensibility, and adhering to deadlines with minimal disruption. First-time litigants may be caught unaware by litigation and be completely unprepared to respond. They may be starting from scratch. Repeat litigants may be insourcing processes previously conducted by outside counsel or service providers. Highly regulated or serial litigants often choose comprehensive solutions for long-term governance, folding in best practices for information management to lower risk and improve go-forward e-discovery, regulatory response, and data-protection initiatives. Solutions today offer a more standard, defensible approach, one that can both streamline operations and tackle costs by limiting data volume and response time. Progressing toward a more integrated and automated methodology leveraging technology reaps dividends specifically, in terms of more predictable, repeatable, and sustainable results. As companies e-discovery processes mature, they create a more predictable, repeatable process one that can be consistently managed like any other enterprise business process.
10 White Paper: The E-discovery Maturity Model 10 Appendix: Symantec Solutions Clearwell ediscovery Platform The Clearwell ediscovery Platform enables enterprises, governments, and law firms to manage legal, regulatory, and investigative matters using a single application. It is purpose-built for e-discovery, making it easy for organizations to defensibly solve real-world challenges across the entire e-discovery lifecycle: from legal hold and collections through analysis, review, and production. Specifically, the Clearwell ediscovery Platform: Assures rapid setup with minimal IT resources. Provides attorneys, litigation support professionals, and IT security teams with an extremely intuitive and user-friendly web-based interface. Streamlines the entire e-discovery process from legal hold and collection through production with a single platform. Enterprise Vault Enterprise Vault enables users to store, manage, and discover unstructured information across the organization. Enterprise Vault helps customers deduplicate information at the source to reduce costs, delete information confidently, and discover information efficiently. Specifically, Enterprise Vault: Enables an in-depth search of electronically stored information (ESI) across the enterprise, giving organizations clear visibility into and control of the discovery, assessment, and management of unstructured and semi-structured information. Automatically classifies and sets retention for as it is archived via the Data Classification Services module, which uses predetermined customer policies. Reduces information risk by enabling retention and deletion policies to keep information only for as long as it is needed. Enterprise Vault.cloud Symantec Enterprise Vault.cloud enables users to confidently address the challenges of storage management, legal discovery, and regulatory compliance, with the ease and efficiency of a cloud-based service. With no hardware or software required, Enterprise Vault.cloud frees up IT resources and provides users with rapid and secure access to archived from their inbox, any supported web browser, smart phone, or tablet. Specifically, Enterprise Vault.cloud: Assures quick and easy set up and use. Harnesses scalable cloud-based processing resources to deliver rapid results from multiple points of access. Enables rapid search and retrieval of s and attachments. Legal holds can be easily placed while collaborative review, categorization, and filtering features help cull large volumes of .
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