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Almost anyone engaged in litigation today is aware of the surprises that the escalating volume and complexity of electronic discovery can present. Every seasoned corporate counsel and law firm attorney has heard a tale about eDiscovery that has gone badly, with a disastrous impact. This can make attorneys feel as if they’ve been operating in the dark. Although there is growing understanding of the need for enterprise discovery-readiness, today’s eDiscovery and records governance efforts are largely reactive and limited in scope. As a result, there is a notable gap between what an organization critically needs to manage its business for discovery and what is actually being done. Underlying this lack of preparedness, we sense a curious “Russian roulette” type of risk taking. Considering over 90 percent of business documents today are created and stored electronically, and 60 to 70 percent of corporate data reside in emails or are attached to emails,1 a far more judicious management of enterprise records might be expected. The potential cost of inaction is measured in millions of dollars.
Amendments to the Federal Rules of Civil Procedure (FRCP) have added new challenges to litigation readiness. The changes bring eDiscovery to the forefront of the process and make proactive, unified management of records and discovery more vital than ever. This report summarizes what was learned, from a survey of legal professionals highly experienced in eDiscovery and records management, about the current challenges, risks and costs. It defines a new path toward proactive preparation for discovery. It suggests adopting new processes, technologies and services. And it establishes the framework to more effectively control the time, costs and risks associated with eDiscovery. The national online survey of corporate counsel, law firm attorneys and litigation support personnel was conducted in March-April 2007. The majority of participants are aware that continued inaction can seriously compromise corporate governance.
A majority of both corporate counsel and law firm professionals strongly agree that being prepared for legal discovery has important business benefits such as minimizing business disruption and controlling costs. Yet months after the new U.S. eDiscovery rules took effect, only 10% of in-house counsels consider their company very well prepared to comply with a discovery request for electronic and paper documents. More than half (55%) consider their company not well prepared. A majority strongly agree that having a records management program provides essential benefits, yet most of their companies do not have a fully-implemented program. Of those with records programs, most lack effective policies and procedures for electronically stored information (ESI).
These are just a few of the key findings revealed in a new study by the CaseData division of Océ Business Services. The survey examines the critical steps legal professionals believe are necessary to deal with the surge in eDiscovery, and finds that the majority of businesses are ill-prepared to handle discovery requests.
The survey reveals the emergence of a major trend—an awakening. Senior counsels in many organizations are becoming more involved in discovery and seek better solutions to deal with the growing volume of data, costs and risks. They state ambitious goals that require fresh methods. As a result, legal departments will be taking a more handson approach to litigation management, particularly when it comes to ESI and records management programs. Best practices businesses seek to move beyond mere compliance, a tenuous position. They aim to adopt a repeatable discovery process, technologies and services that will work for regulatory requests and internal investigations as well as litigation. Corporate counsels and law firms understand that business process outsourcing is one of the components of an effective approach. The majority are considering a mix of internal and external expertise and service providers for their organizations.
Corporate and law firm attorneys strongly agreed on five factors that are important to effectively comply with a discovery request:
__ Having a functioning eDiscovery response strategy in place
__ Having a well-planned and complete records management program in place
__ Knowing the IT structure of your company/client
__ Consistency in implementing discovery practices
__ Having a legal hold system in place
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