E-discovery Project Decision Guide

Transcription

1 E-discovery Project Decision Guide Policy, Process & Software FORMING POLICIES AND IMPLEMENTING SUCCESSFULLY A MANAGEMENT DECISION GUIDE THIS REPORT IS A CRITICAL GUIDE FOR RECORDS MANAGERS, IT MANAGERS, RISK MANAGERS, INFORMATION ARCHITECTS, DATA CENTER MANAGERS, INFORMATION SECURITY MANAGERS, AND COMPLIANCE MANAGERS RESPONSIBLE FOR ELECTRONIC DISCOVERY (E- DISCOVERY) CAPABILITIES IN THEIR ENTERPRISE.

2 Who we are IMERGE Consulting is North America's largest and most experienced team of experts in the fields of enterprise content management (ECM) and business process optimization. IMERGE is also a leading provider of education courses in records management, electronic document capture and e-discovery. IMERGE has offices in major cities including Boston, San Francisco, Toronto, Chicago, Houston, Los Angeles, Minneapolis, Seattle, New Orleans and Washington, DC. What we have achieved Our track record speaks for itself: We have completed more successful projects, published more articles and given more expert presentations than any other enterprise content management consulting firm in the world. We are proud that our organizations include some of the world s best and largest public and private organizations. Learn more about us at imergeconsult.com or contact an IMERGE professional today to discuss putting our expertise to work for you. About the Author Robert Smallwood, MBA, Master of Information Technology, Laureate of Information Technology is a founding Partner of IMERGE Consulting and has been recognized as one of the industry s 25 Most Influential People and Top 3 Independent Consultants by KM World magazine. Some of his past organizations include Bank of America, AT&T, Xerox and IBM. He has published more than 100 articles and given more than 50 conference presentations on document and content management, specializing in management expertise since He is the author of the book, Taming the Tiger. Amy Girst, J.D. contributed the project planning portion of this report. 1

3 Disclaimer The references provided in this book should not be considered as legal advice, and is only provided as a resource and starting reference point for further foundation to your organization s own research. All cited references should be verified and updated with your own legal counsel and findings as applicable. Table of Contents Overview Key Functional Requirements for E-Discovery Software.. 7 Evaluating E-Discovery Software Providers: 10 Key Criteria 8 The Evaluation and Selection Process: RFI, RFP or RFQ? E-discovery Marketplace M & A Activity Review of the Top 20 Software Providers Anacomp - Autonomy - AXS-One (Unify) - CA - Clearwell - CommVault - FTI Consulting - Guidance Software - i365, A Seagate Company - IBM - Interwoven - Kazeon - Mimosa Systems - Nuix - Open Text - PSS Systems - Recommind - Symantec - ZyLAB 2

4 E-Discovery Project Planning Why e-discovery Readiness is Important 2. Your Organization Needs To Comply with the FRCP 3. Electronically Stored Information 4. E-Discovery Techniques 5. E-Discovery Rules 6. Issues with New E-Discovery Rules 7. Meet and Confer 8. Not Reasonably Accessible - Undue Burden or Cost 9. E-Discovery: Undue Burden or Cost/Good Cause 10. Good Faith: E-Discovery Safe Harbor 11. Legal Holds 12. E-Discovery Readiness Conclusions..61 ADDITIONAL RESOURCES..62 3

5 Overview Enterprises purchasing e-discovery software can reduce the costs of litigation by improving their control over unstructured and semi-structured content, especially archived messages. They can also cut costs and risks by taking control of litigation hold, litigationhold tracking, file collection, file processing and legal review instead of outsourcing these functions. At last count, over 5000 firms offer some sort of electronic data discovery (EDD) products or services, making the market difficult to assess, and the following publication provides clarity and current information for those struggling with e-discovery decisions. Properly implemented archiving and discovery software can yield significant cost savings, mostly attorney review costs, but also in IT and records management. E-discovery software has demonstrated astounding returns on investment, with payback periods typically as short as 4-6 months after software installation and user training is complete. E-discovery includes and overlaps with other technologies and disciplines, including records management (RM), archiving, enterprise content management (ECM), and enterprise search. E-discovery is a separate and distinct area, independent of other complementary or overlapping areas. E-discovery requires, at different points in the process, a combination of functionality; for instance, archiving software may play a large role early on, but sophisticated search and pattern recognition software is needed to sift through the vast stores of messages and related e-documents, and then the shaping and presentation of the findings requires still other distinct functionality. E-discovery is esoteric and changing, as it is regulated by the 2006 changes to the Federal Rules of Civil Procedure, and court decisions that have followed that impact the legal and legitimate processes in the discovery process. Electronically stored information (ESI) of varying types must be located, preserved and protected, collected, analyzed, reviewed, produced and managed over the document life cycle. 4

6 The e-discovery market was active and growing but began its rapid growth with changes to the Federal Rules of Civil Procedure in December 2006, which dictated how electronically stored information is handled in the discovery process. Since then, the e-discovery market has been growing at a blistering pace of 50% or more, but according to leading industry sources, this growth will slow to between 25% and 35% annually from E-discovery is still an immature and growing market with entrants bringing certain strengths, that is, firms like Iron Mountain and EMC are strong in storage and archiving, Autonomy and Lexis-Nexis are strong in search and information access, Open Text is a leading ECM provider with strong content management and workflow, and a host of providers come from case management and litigation support applications for legal professionals. The slowing of growth in the e-discovery market is due to a more crowded competitive field, its natural convergence and encroachment into and within its component markets, and the fact that the most motivated buyers have purchased software or developed in-house solutions. More and more enterprises are looking to cut costs and increase control by bringing parts of the e-discovery process in-house, especially records management functions. For example, Raytheon, Eastman Chemical, and Pitney-Bowes all touted cost savings of insourcing portions of the discovery process. Verizon saved about $4M in one year and the company expects a nearly 400% return on investment over the next three years. 1 To ultimately solve the e-discovery challenge, organizations must gain full proactive control over unstructured data and this may take 3-5 years for the needed technologies to be truly integrated seamlessly and real-time and brought to the market, and as much as 7-10 years for companies to fully adopt and integrate these technologies into their operations. Consider that electronic documents, data, and messages have largely been unmanaged with growth spiraling, and, after years of accumulation, the amount of information is voluminous, and may be thousands and thousands of gigabytes petabytes of data for a single organization. Another consideration is the development of appropriate governance 1 Law Technology News, 8 October

7 and risk management policies, and records retention and disposition schedules for the mass of electronic information, which many managers delay or avoid, if at all possible. Demand for e-discovery functionality has emerged as centering around the processes defined in the Electronic Discovery Reference Model, 2 but particularly in the Processing, Review, Analysis step, where the vast majority of cost occurs, (since it is time-intensive for attorneys). Over 98% of companies with over $1 billion in revenue are involved in between one and 20 lawsuits with claims over $20 million with the average suit costing over $1.5 million to defend. 3 But attorney review costs can be cut drastically by utilizing electronic document management and e-discovery software, one study citing as much as almost 90% providing clear justification for purchasing e-discovery and related software. 2 edrm.net 3 Fulbright and Jaworski 2007 Litigation Trends Survey 6

8 Ten Key Functional Requirements for E-Discovery Software 1. A REPOSITORY for archiving records and content that preserves files in an unalterable format; the capability to tag or flag files for retention according to established retention schedules. 2. DATA INTEGRITY through preservation of not only files but also associated metadata, and the ability to freeze documents that have a litigation hold by backing up to a secure repository. 3. Fundamental data and document PROCESSING including culling by file type, deduplication, the ability to categorize the data. 4. Basic keyword or Boolean SEARCH in a federated way across multiple repositories (e.g. file servers, archives, content management systems). 5. TRACKING the custodian's responses to preservation requests (If preservation is custodian-led). 6. Ability to LOCATE AND IDENTIFY documents requested in the e-discovery process using a full set of metadata, such as file owner/creator, creation date, date of last access, desktop or system of origin and keywords. A workflow-based system that routes documents helps to track custodian-led collection processes. 7. The ability to identify, mark and/or copy INDIVIDUAL FILES contained in systems, file servers and bona fide electronic document management systems using either an (automated using a copy and move function) or custodian-led process (where attorneys identify individuals who created or controlled documents and request they be copied). 8. Verifiable REPORTS showing total set of documents, data and messages that have been collected, and also the subset of preserved documents and all custodian notifications. Data integrity of documents and metadata must be verifiable and demonstrable. 9. DOCUMENT REVIEW TOOLS that facilitate the review, categorization and tagging of documents for inclusion in production for opposing counsel, regulators or courts. Tools may include redaction and highlighting tools, complex search capabilities, visualization and pattern recognition, Bates Numbering, workflow or business process capabilities, categorization and classification functionality, native file format viewers, integration with common desktop tools such as Outlook or Notes, and the ability to export files in various formats especially for litigation support databases and other review products. 10. Ability to PRODUCE DOCUMENTS for an outside party to review. This functionality implies that various export and viewing facilities exist; i.e. the ability to view documents in their native format, or a rendition in XML or another portable standard format. 7