Best Practices for Navigating E-Discovery: A Whole New World

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May 11, 2011

May 2011 Issue

Discovery has never been a simple process for organizations, even in the "old days" when discovery generally entailed gathering piles of documents into large boxes and wading through them by hand. Information long ago evolved from print documents to electronic formats, which has created both challenges and opportunities-challenges in that the sheer volume of information to be "discovered" is massive, and opportunities in that technology can simplify the process of evaluating and searching through electronic documents to find required information.

As discovery has moved beyond print documents to the electronic environment, a new term has emerged: e-discovery. In his report "Q&A: eDiscovery Fundamentals for Content & Collaboration Professionals," Brian Hill of Forrester Research defines e-discovery as "the iterative process of identifying, collecting, preserving, preparing, reviewing, and potentially producing electronically stored information (ESI) to support litigation, investigations, and regulatory proceedings."

In 2006, the U.S. Federal Rules of Civil Procedure (FRCP) took effect and addressed e-discovery, including the process for preparing and producing ESI and for resolving related disputes. Unfortunately, 5 years later, confidence in their e-discovery capabilities is low for most organizations, according to Forrester's research. "Only 16% of records management stakeholders and 28% of message archiving stakeholders report that they are ‘very confident' that if challenged their organization could demonstrate that their ESI is accurate, accessible, and trustworthy." According to Hill, concerns stem from a number of sources: complications in aligning multiple internal stakeholders (e.g., IT, legal, records management, compliance, and others); an increase in litigation; a myriad of technology options (e.g., on-premise software, appliance, cloud, and hybrid approaches); vendor selection complexity in an extensive field of e-discovery providers (Forrester estimates that there are more than 600 vendors that address different components of e-discovery); the need for extensive collaboration with outside counsel (and other third parties); rising costs to support the e-discovery process; and requirements to track changing case law.

Sarah Carter is vice president of marketing at Actiance (formerly FaceTime Communications) in Belmont, Calif. She says there are two primary challenges that organizations face when it comes to e-discovery. First, there's the broad diversity of data and the formats it may be in. "It's not necessarily just about email anymore," she points out. "It's records of social networking conversations and blogs and wikis, whether they're internal or external." The second big issue is the sheer amount of data. "There is not enough storage on the planet to store all of the data we are required to store," she says.

In fact, International Data Corp. (IDC) predicts that the amount of digital data created in a year will be 35 zettabytes (ZB) by the year 2020-that represents a stack of CDs that would reach halfway to Mars.

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