Posted by Frank Wu on Thursday, April 10, 2014 - 00:00
Electronically Stored Information (ESI) now constitutes the majority of the data that is turned over during legal discovery proceedings. Along with other technologies that have made their mark on the legal profession during recent years, “big data” -- the collection of large and complex data sets -- continues to permeate and impact the legal and regulatory environment.
With the explosion in the volume of data, businesses have spent billions of dollars on e-discovery in the past decade. During this time, we’ve seen significant maturation and standardization with regard to e-discovery workflows and tools. However, the costs and complexities surrounding e-discovery continue to mount.
There is a growing need for more effective evidence management -- upfront and throughout the e-discovery process. In particular, attention needs to be paid to the “blind spot” in big data -- data generated during e-discovery engagements.
Challenges and Opportunities
The cost of compliance and the consequences of non-compliance to discovery requests and obligations continue to impact organizations, large and small. Even the concept of “spoliation” -- the intentional or negligent withholding, hiding, altering, or destroying of legal evidence -- has changed within the legal community -- from something you actively did to something counsel actually failed to prevent.
Response to this potential risk has led, in many cases, to drastic over-collection and over-preservation of data, which in turn has contributed to increased discovery costs, duration and burden. It also has introduced additional distractions and taken disruptions to a whole new level, often resulting in:
- More waste – Preserving or retaining large amounts of unorganized or useless data over extended periods of time just to comply with legal holds often leads to more waste. This can cause unnecessary drain on already scarce resources.
- More mistakes – When compelled to preserve and produce, sifting through large amounts of data in a limited timeframe during the document review process often adds complexity and the likelihood of mistakes. This can put an unnecessary strain on resources as well as increase the risks of errors (inclusion and omission).
- More surprises – With the potential for more waste and mistakes, the likelihood of negative outcomes and consequences increases, often exposing organizations and key stakeholders to unnecessary -- and unwanted -- surprises.
In most cases, organizations may not have the resources to manage these surprises before they become a real crisis or problem.
Our Point of View
There is a growing need for more effective evidence management -- upfront and throughout the e-discovery process. In particular, attention needs to be paid to the “blind spot” in big data -- data generated during e-discovery engagements. Since such data is no longer “just data,” traditional data management practices may no longer be sufficient. The data needs to be considered as evidence -- and treated and handled as evidence with the requisite security and evidence management protocols.
Even companies with the most robust and mature information management processes have been tripped up by this blind spot. The created or collected evidence often appears to go into a data black hole where access and ownership is uncertain once it has served its purpose. As evidence in a matter generally flows through many parties, a process-based approach is needed to effectively manage it through its entire life cycle. And this cycle does not end with the resolution of the matter but rather with the disposition of the data created or gathered as evidence.
Emphasis should be placed on the evidence life cycle management even prior to collection so the defined processes and responsibilities are clearly identified and addressed. This also will help define and secure agreement by all parties on the retention requirements.
Have you developed practices that have been successful in managing data generated during e-discovery engagements? Please share your thoughts in the comment box below.
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