Eye on Discovery – Stop the Madness: Close the Gaps Now to Avoid Discovery Mayhem Later

Gaps are good if you’re a basketball team playing strong defense in the NCAA tournament. In March Madness, teams that survive and advance tend to exert stiff pressure on the defensive end, forcing the other team to turn over the ball or to attempt a contested shot, leading to scoring droughts that can last up to five minutes or more.

But when it comes to defending a corporation, gaps are an evil to be avoided at all costs, and playing stout defense requires closing as many gaps as possible. In this year’s Law Department Benchmarking Report by Huron Legal + Consilio, the responses signaled that three significant gaps remain as organizations consider how best to prepare for the challenges of eDiscovery. Organizations should examine whether these gaps exist in their location and determine how best to address them to avoid falling victim to a plaintiff that mounts a powerful offense.

1. Discovery Programs

Not surprisingly, larger companies were more likely than smaller ones to proactively implement discovery programs. More than half of companies with over $10 billion in revenue had these programs; another quarter planned to build these capabilities in-house within three years. Meanwhile, most companies with revenue under $2 billion indicated no plans to institute such a program.

How to close the gap: The more structured an organization’s approach to discovery, the more defensible the process. By implementing discovery programs throughout the enterprise, organizations facilitate adherence to policies and procedures, standardize discovery processes from matter inception to close, streamline workloads and related fees, and ensure greater consistency within and across matters… even for companies at the smaller revenue range.

2. Discovery Teams

54 percent of respondents with revenue exceeding $10 billion had in-house discovery case support/project management resources, but more than half of the companies with less than $10 billion in revenue had no plans to integrate such teams.

The report also revealed that the larger the company, the more likely it was to employ a dedicated discovery manager: 76 percent of respondents with more than $10 billion in revenue had hired a person to fill this role while only 40 percent of companies with less than $2 billion in revenue had a dedicated discovery manager.

How to close the gap: A dedicated, internal discovery management team with representatives from the legal, IT, and records teams can ensure discovery is managed efficiently and in line with the organization’s discovery program, budget and regulatory mandates. Moreover, consistent oversight from a dedicated discovery manager can ensure processes and methodologies remain evergreen and, in turn, improve the defensibility of results.

3. In-House Discovery Technology

Three quarters of the responding organizations with more than $10 billion in revenue maintain legal hold systems in-house, however close to half of the organizations with less than $10 billion in revenue do not employ a legal hold system.

Other than companies in the highest revenue tier, most respondents do not internally maintain technology for the remaining phases of discovery, including data collection, data processing and hosting, document review, technology-assisted review (TAR), and discovery workflow tracking.

How to close the gap: In-house discovery teams often lack the bench depth, budget or concentrated expertise that seasoned vendors can provide.  As such, it does not always make sense for an organization to bring data collection, data processing and hosting, document review, technology-assisted review (TAR), and/or discovery workflow tracking tools in-house.  However, integrating legal hold technology yields unequivocal value in managing risk. Such tools automate and facilitate the preservation process, including the initial distribution of holds as well as follow-ups, escalations, reminders, and tracking.  These tools save an organization the time required to execute these same tasks manually, as well as inherently create a comprehensive tracking and reporting mechanism from which the legal team can leverage for ongoing preservation, collection and discovery management purposes.

For even more insights and best practices, please visit the Report website.

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