Information Governance: Notes from the eDiscovery Institute Leadership Summit

Last week I had the pleasure of attending the EDI Leadership Summit in Santa Monica, CA.  This event brought together judges, lawyers and experts from numerous industries, in the interest of furthering the state of the law and state of the art in the arena of eDiscovery. The sessions were well-attended and universally thought-provoking, with topics ranging from the setting of industry standards, through information governance and the ever-shifting definition of what constitutes “reasonable” discovery.  No, really, it WAS very interesting!

 

Amongst the stand out sessions were the absolutely ingenious eDiscovery Jeopardy game, Hosted by LTN’s Craig Ball and played by industry notables Amor Esteban, Robert Owen, Jonathan Redgrave and John Rosenthal; the awarding of the eDiscovery Leader of the Year award, which went to the Honorable Andrew Peck for his pioneering and tireless work in this space; and finally a discussion on the Civil Rules Committee Update to the Federal Rules of Civil Procedure (FRCP).  The Information Governance session hosted by HP wasn’t half-bad either, and many thanks to our panelists Eileen Carlson, John Isaza and Stephanie Mendelsohn for their participation and many well-founded insights.

 

There were three key take away’s that were worth visiting, here:

 

Current eDiscovery Trends are Unsustainable
One of the things that is increasingly clear is that the scale, scope and cost of eDiscovery is on an unsustainable path.  The volume of data in our world is doubling every year meaning that the scope of any eDiscovery effort is growing at a similar rate.  The costs associated with capturing relevant data for discovery and producing it for opposing counsel is growing dramatically, if only because the pile of data each company maintains these days is growing so large, so quickly. 

Indeed, during the lunch session on Wednesday Jonathan Palmer, Assistant General Counsel for Microsoft shared with the audience some astonishing numbers.  The volume of data that Microsoft held under litigation hold grew from 1.8 billion pages in 2010 to over 11.5 billion pages in 2013; a more than six-fold increase in three years! As Jon reviewed these numbers many in the audience nodded in agreement, or perhaps it was in fear! Such growth is clearly unsustainable, and it is increasingly clear that we all must begin to used more advanced technologies in order to keep all of this data under some semblance of control.

 

Technology Assisted Review (TAR) is No Longer Optional
Although companies are seeing a two, three or even ten-fold increase in the volume of documents they must manage under a legal hold there is one thing that remains largely constant: the rate at which humans can read! As such, the costs associated with eDiscovery must naturally double, triple or quadruple every year, unless we can find a better way of reviewing billions or trillions of documents. 

Fortunately, we have.  TAR systems, such as HP’s Autonomy, have the ability to consume such volumes of documents with little difficulty, they do so with much greater consistency and they produce arguably better results than human review, as I discussed in my previous post on TAR. As we move into a world where exabytes (a million terabytes) or zettabytes (a billion terabytes) of data becomes pedestrian, we have no option but to embrace TAR in eDiscovery.  This doesn’t mean that we take people completely out of the loop.  But we must initially use TAR to digest trillions of input records into a more reasonable quantity requiring eyes-on review.  Getting down to a few hundred thousand records per case might be a nice place to start!

Information Governance is the New Imperative
Finally, the theme of Information Governance (IG) was notably emphasized throughout the program.  It seems that the eDiscovery industry is rapidly coming to the realization that the effective use of IG may be one of the ways in which companies can begin to control their eDiscovery costs. I have watched IG get a bad rap for the last couple of decades, as it always seemed to be an added cost of doing business - an impairment to things like collaboration and basically, a necessary evil.  However, this perception seems to be rapidly changing in the face of the mounting cost and complexity of eDiscovery.

Today, there appears to be a growing understanding that it is better to control data at Create, rather than at
Catastrophe (litigation).  If you manage data throughout its lifecycle, rather than just at the end, you are more able to respond correctly to discovery requests as they appear.  In fact, you might even be able to capture issues in your business BEFORE they invoke litigation.  So an ounce of prevention could be worth several tons of (after-the-fact) cure.

It turns out this is precisely the sort of cost advantages many of our customers are realizing through the implementation of effective IG. Most CIO’s are metaphorically standing on a street corner, begging for nickels and dimes with which to implement tools to help their business. Meanwhile, their own legal departments are bleeding millions and millions of dollars to respond to discovery requests which add no business value, consume vast resources, and constantly point out that there MUST be a better way of doing things. 

It is not unusual for companies to spend several millions of dollars in eDiscovery technology and services in a single litigation.  What if we were able to divert just a little of these otherwise-wasted funds into building an effective IG infrastructure?  What if managing a piece of data at create proved to be ten or even one hundred times cheaper than locating that piece of data during a catastrophe?

The better way of doing things is Information Governance. And the sooner you embrace advanced IG technologies like HP’s Records Manager and Control Point, the sooner you can start to realize significantly lower eDiscovery costs, along with a host of other business benefits from knowing what you have, where you have it, and what it all means.
So please, let your CIO stop panhandling to fund Information Governance. It’s unseemly.

 

If you’re itching to hear more of my thoughts on this subject, join this webinar on November 12 - Don't Let Dark Data Scare You:  Implement a Data Remediation Program

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About the Author
Chris Surdak is a Subject Matter Expert on Information Governance and eDiscovery for HP Autonomy. He has over 20 years of consulting and te...


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