Partnering with an external expert can help organizations develop a comprehensive solution that saves time and money.
Large-scale electronic document and data discovery
is enough to give nightmares to business leaders in large corporations. Scarier
still are stories of discovery gone horribly wrong, like the former British
Columbia government employees currently on trial for allegedly leaking details
about the pending sale of British Columbia Rail to CN Rail to a rival
bidder.1 Their lawyers
maintain that the individuals were acting on orders from their superiors,
something easily proven with relevant email records. The only problem is that
many of the emails from 2001-2005 related to the sale – possibly tens of
thousands of emails – have vanished.2
This void of essential information in the British Columbia case will likely
have organizations potentially subject to litigation in the U.S. asking
themselves how prepared they are to defensibly identify and produce information
from emails, electronic documents and databases with pinpoint accuracy at a
moment’s notice.
A recent survey of 200 legal professionals familiar with ediscovery,
conducted by Xerox Corporation and Kelton Research, revealed that even with data
retention policies in place and confidence in their legal professionals, many
organizations fear the damaging consequences of a potential mishap. An
overwhelming majority of participants (95 percent) express faith in their
company’s ability to manage documents for ediscovery, but only 29 percent judge
themselves to be extremely prepared to provide the necessary documentation if
challenged on the adequacy of their efforts.
In-house software solutions, designed to help prepare content in the event of
litigation, are often identified with this lack of confidence. Forty-one percent
of respondents using in-house review systems reported inadequate system support
and lack of important features. Slow turnaround times, lack of available IT
support, costly delays, and legal ramifications lead many organizations to seek
external advice.
Partnering with an external expert can help organizations develop a
comprehensive solution that saves time and money. Litigation service providers
help companies proactively manage the discovery process with technology while
maintaining a defensible chain of custody. External experts specialize in
creating solutions that are tailored for the organization’s needs, allowing the
in-house team to divest themselves of the burden of purchasing, maintaining and
upgrading equipment and software by outsourcing the hosting and retrieval of all
paper and electronic documents. In fact, survey findings indicate 87 percent of
respondents think outsourcing is a value-added expense.
The dynamic nature of communication in today’s work
environment necessitates a holistic approach to managing all types of information with
accuracy, security and flexibility. This includes taking into consideration the location
of all material defined as a record–from paper and electronic files to email, text
and instant messages, voice mails, and transactional databases.
The government of British Columbia reported to the court that all of the
emails related to the above case are not recoverable because the standard
retention for electronic data (emails) is 13 months. The defense has issued
questions asking the government to explain the steps taken to search for the
emails.
Companies must identify a solution that will take into consideration the
business culture, process and technology available to create a viable and cost
effective program. Proactively implementing and testing these solutions before
litigation arises will not only ease ediscovery woes, but also create economies
in managing and maintaining the company’s data for legal, regulatory, and
business needs.
Robert Wickstrom is senior manager of strategy at Xerox Litigation
Services (XLS), which manages the implementation of new services and products.
XLS is one of the world’s largest providers of electronic discovery services,
helping corporate counsel and outside law firms reduce risk and control costs in
complex ediscovery matters. Its ediscovery platform is continually enhanced with
new technologies to streamline the analysis of legal documentation, most
recently with CategoriX and E-Mail Analytics.
1 The Globe and Mail, “Missing Files Leave
Lawyers in Disbelief,” June 25, 2009
2 The Globe and Mail, “Contentious
Emails Recovered in B.C. Corruption Trial,” Oct. 13, 2009