WHITEPAPER: Committing to an eStrategy

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Dec 20

According to legend, when 16th century Spanish explorer Hernán Cortés reached the New World he ordered his expedition to burn the boats they used to get there.  Cortes wanted to demonstrate his country’s commitment to conquering the new land.  There was no going back--only forward.  Since the advent of electronic discovery a little over a decade ago, corporate America has largely tried to avoid making such a commitment to a unified litigation response strategy that deals with electronically stored information (“ESI”).  Instead of committing to the future many corporate honchos have decided to treat each litigation matter as an isolated event with no eye to the future and no look back to see how they could improve the process.
The numbers are staggering with regard to how poorly corporate America is prepared for litigation involving ESI.   According to Kroll Ontrack’s Fourth Annual ESI Trends Report, nearly half of the companies in the U.S. do not have an ESI discovery strategy for responding to litigation or investigatory matters.  Further, over 60% of respondents either do not have a tested ESI discovery strategy or do not know if their policies have been tested.  Why?  ESI is not going away.  Industry newsletter Qubit reports that over the course of the next decade email traffic will increase 50% to over 150 billion emails sent each day. Further, according to a 2011 study conducted by the Huron Consulting Group, over 75% of the respondents expected to see an increase in e-discovery matters over the next twelve months.
So if data is growing at historical proportions and--by most forecasts--an increase in e-discovery matters is expected over the course of the next decade, what explains the dragging numbers of those companies not converting to a defensible ESI strategy?  Cost. While corporate IT and the office of the general counsel are generally on board, most report that budgetary concerns are tying their hands.  When the time comes to assign budget numbers and fund ESI readiness projects, proponents of a plan cannot point to a tangible return on investment that corporate accountants can leverage as a means of building a consensus. 

According to the Kroll Ontrack poll, only 40% of responding companies budgeted for discovery as a component of their overall litigation budget and over half of the companies did not know if they were implementing cost-control measures to reduce discovery costs.  With average litigation budgets hovering around $1.25 million and uncertainty abounding as to how to control spiraling discovery costs, the greatest asset a GC can pass on to the accounting department is economic certainty.  That is, the ability to implement a litigation strategy that is predictable and efficient.

There is no reason a sound litigation strategy cannot create significant savings in a corporate litigation budget--especially given the emergence of advanced email and network platforms that can streamline the electronic discovery process. In the right hands and with the right direction, these tools can dramatically cut down the corporate data universe and provide counsel with the most relevant documents for review--in a fraction of the time previously needed to do the same work. Improved collection and culling processes will ultimately create downstream savings in review, production and hosting costs. As it stands now, many corporations are behind the eight ball before the first discovery requests are even served.   A typical discovery timeline does not allow for anything other than wholesale collection, processing and review phase rather than a targeted and efficient collection and culling process that can lead to a focused review for outside counsel.  The efficiencies and savings are there, the client just needs to know how to find them and then commit to building out the plan.

ESI is never going to be a black number on the ledger.  But its impact on litigation budgets can be mitigated significantly with a cohesive strategy in place.  The time is quickly approaching where corporate counsel and their outside counterparts need to act.  Either burn the boats and take control of your destiny.

David S. Weber is General Counsel for Digital Discovery and serves as a computer forensics consultant and eDiscovery expert to corporations and law firms.