Regardless of your industry, if you are a large organization you are going to get sued. In this day and age, patent lawsuits exceed one billion dollars, car manufacturer recalls cost companies hundreds of millions of dollars, governments are burdened by hundreds of FOIA lawsuits per year, and banks pay upwards of one billion dollar fines for insider trading. There seems to be a clear message for even the most cautious of companies: you had better be prepared for litigation.
In my work and discussion with businesses, there are two major trends I have noticed:(1) Companies are using too many tools to span the Electronic Discovery Reference Model (EDRM), and (2) Companies want to save as much money as possible along the way.
My solution to their problems is pretty simple – “To the left, to the left.” Who would have guessed that Beyoncé would unofficially become the spokeswoman for the EDRM?
The most important segment of the EDRM is the step that is is all the way to the left (to the left): Information Governance. What companies are doing now that is costing them both time and money is only beginning the Information Governance process once eDiscovery is needed – i.e. collecting and managing data only when litigation hits. What they need to be doing is managing and controlling their data prior to any sign of litigation.
The EDRM foundation itself increasingly agrees with this philosophy, as well. Just this week, they introduced an updated EDRM model which further emphasizes the Information Governance phase as an ongoing and iterative process. No longer called “Information Management” or designated as an equal sequential step, Information Governance is highlighted as the foundation for ALL downstream handling of data. The process is iterative, and it all loops back and flows from Information Governance. Being that we’re on the whole celebrity theme, you could summarize by saying IG is “kind of a big deal.” Total VIP status… it skips the line at the club.
Put simplistically, Information Governance (or Information Management, as it was previously titled) involves ensuring that what data needs to be kept is kept, what data needs to be deleted gets deleted, and that you are able to find any piece of data you need within seconds. Without a proper Information Governance tool that governs data throughout its lifecycle, companies wind up with a non-defensible eDiscovery process. Furthermore, organizations whose Information Governance tool fails to span the entire EDRM end up having to rely on a hodgepodge of piecemeal solutions. Skipping out on proactive Information Governance, and instead employing an ad hoc approach to eDiscovery, is the biggest reason that companies’ eDiscovery costs are through the roof. Sounds like it’s time to move “to the left, to the left!”
Instead of using a haphazard approach to eDiscovery, organizations should turn to an Enterprise Information Archive (EIA) in order to mitigate the significant, unnecessary costs associated with litigation. Seth Eichenholtz, Assistant United States Attorney for the Eastern District of New York and a contributor for the American Bar Association, states “processing can become the most expensive component of litigation,” which, for companies without an EIA, is why eDiscovery costs skyrocket for such firms. A study from EDRM.net stated that “collection, processing and reviewing data costs around $18,000 per GB.” Additionally, vendors have found that companies larger than 1,000 employees average 160 GBs of data per case. Putting the numbers together, that’s $2,880,000(!) for a single instance of litigation. Not to mention that unforeseen complications can spawn yet more expenses, escalating the total cost far beyond initial estimates or budgets.*
Now let’s examine how moving to the left can help.
A few months back, I worked with a team from a mid-sized investment bank to evaluate their current eDiscovery process. When we talked about their current process of using native Exchange archiving and an ECM for “data governance,” a tool for collection and legal hold, 3rd party services for processing and hosting, and outside counsel for review and analysis (raise your hand if this sounds like you), they easily saw how their process drove up litigation costs. After implementing an EIA, they had a one-stop shop to span and fulfill the requirements of the entire EDRM, not only saving them lots of time, but most importantly millions of dollars on E-Discovery costs. And all they had to do was move to the left.
*In my previous article, I discuss how exporting data out of the cloud for eDiscovery purposes can cause you to incur unexpected fees – which are another cost that an enterprise must be aware of when considering its eDiscovery process.
For questions or feedback, please feel free to leave a comment below, reach out to me on Twitter @Ross_Rubinchuk, or contact me directly at firstname.lastname@example.org.