Sustained by a nationwide propensity for litigation and an increasing volume of electronically stored information (ESI), the market for e-discovery software products seems destined to continue its dramatic growth for the foreseeable future. Gartner reported that e-discovery vendor revenue grew 30 percent in 2008, and predicts an annual growth rate of 21 percent through 2013.
“Many industries now see e-discovery as a core aspect in their businesses,” says Whit Andrews, an analyst at Gartner. “Certain highly regulated industries in particular, such as energy and pharmaceuticals, are bringing the function in house, fueling sales of these software products.”
Although it is not a fit for every organization, conducting in-house e-discovery is less expensive than outsourcing it, and can simplify coordination of cases. Early case assessment based on the findings can help organizations make a quick decision about whether to settle or go to trial. When the case is resolved, through a settlement or verdict, the legal hold is removed from the documents, and they go back into the normal document retention life cycle.
NBC Universal speeds the process
Documents affected by e-discovery have their own life cycle within the larger body of enterprise information. If a hold is put on a document, it cannot be changed or deleted until the case is resolved. Once the hold is lifted, the document goes back into the mainstream and is under the original retention schedule. E-discovery can also serve as a catalyst that motivates companies to improve their overall document management.
As one of the world’s leading entertainment companies with business interests in broadcast and cable television, film and theme park businesses, NBC Universal has always had to be ready to respond to a variety of legal requirements, including litigation. Over the years, the increasing volume of ESI and the number of cases placed a heavy burden on the information security team, which handles e-discovery for all the business units of NBC Universal. Collaboration between legal staff and IT staff was impaired by the lack of a shared e-discovery solution.
To speed up the e-discovery process, NBC Universal decided to supplement its legacy e-discovery software tool with the Clearwell E-Discovery Platform from Clearwell Systems. “Our primary goal in making the change was increased capability and speed, and we definitely have achieved that,” says Jonathan Chow, chief information security officer (CISO) at NBC Universal. “We also wanted an interface that was easier to use.”
Now, legal teams can get involved earlier in the cases instead of waiting for IT to produce data for them. The teams can use the software themselves to perform complex searches, review results and construct “what-if” scenarios. “The litigators know exactly what they need,” says Chow, “and the Clearwell platform lets them accomplish their tasks directly.”
Another advantage that Chow saw in working with Clearwell was that the company demonstrated its willingness to incorporate customer feedback on their product. “I felt we could have an impact on product development decisions that would benefit our organization,” Chow explains. Over the years, Clearwell has added a number of features that Chow had asked for early on and still considers valuable. In general, those new features have moved the Clearwell platform beyond its initial focus on processing, to managing the downstream production stages. One example is redaction, which allows attorneys to remove confidential or privileged information from the final version of electronic documents delivered to opposing counsel.
The driving forces
Part of the increase in speed of e-discovery for NBC Universal stems from the ability of the Clearwell platform to quickly search the document repository and remove material that is non-responsive. Having a smaller amount of material to review allows a more rapid early case assessment, and substantially cuts costs during detailed reviews. “We are very happy with this product,” says Chow, “and we only see our usage increasing over time, as the number and complexity of cases continues to grow.”
Several major forces are driving the e-discovery market, including increases in litigation and the growth of ESI. “As a result, the ad hoc e-discovery processes that were typical in organizations five years ago have been replaced by core processes that are a normal part of business now,” says Kamal Shah, VP of products and marketing at Clearwell. “E-discovery has become a critical business process in the enterprise.”
One of the challenges that Shah perceives in e-discovery is the tendency to save everything. “Because storage is cheap now, it’s tempting to just archive all the documents, rather than making policy decisions about them,” Shah remarks, “but that approach can result in higher e-discovery costs.” In addition, the documents are likely to be scattered across many servers, laptops and removable storage devices, all of which must be accounted for during e-discovery.
Enterprise information management
“E-discovery is about finding documents wherever they might be—but the right ones, not everything,” says Gregory Kosinski, director of product marketing for the Information Intelligence Group at EMC. “Within an ECM system, storage and retention are well defined, and documents are connected to workflows and various levels of security. Enterprise content management (ECM) systems are generally the least of the problem when e-discovery is required because documents there are under some level of control. Other repositories and unmanaged files can be more of a challenge.”
EMC purchased Kazeon, an e-discovery solution, in September 2009 to extend its capability in e-discovery. EMC’s SourceOne product previously focused on e-mail archiving and e-discovery within the archive, and with the addition of Kazeon’s technology, all types of documents are now discoverable. Also, enterprisewide e-discovery from a processing, preservation, analysis and review standpoint are possible, allowing enterprises to perform defensible early case assessments.
Having a stated retention policy that is reliably enforced is a critical aspect of e-discovery. “What regulators look for is whether an organization is consistent in how it manages documents,” says Karthik Kannan, senior director of product marketing for EMC SourceOne eDiscovery - Kazeon. “Although many organizations are reactive the first time they are faced with e-discovery, it’s also possible to plan for an infrastructure that sets you up to be prepared for it. Part of that is policy, and part is having the technology in place.”
That is where ECM, records management and e-discovery should come together. Companies need policies that allow them to identify what should be retained, and should destroy documents at the end of their retention cycle. The best way to save time in e-discovery is not to have unnecessary documents in the first place. However, the reality is that most enterprises have many documents outside the ECM system.
In situations where the company has not proactively prepared itself for e-discovery, the visibility provided by e-discovery can have an added benefit beyond the case at hand. “Once an organization sees what documents it has,” says Kosinski, “it can make better decisions about what to save and what to delete, as a matter of policy, in the future.”
Gartner’s Andrews agrees with the idea that e-discovery may have long-term benefits for a company’s document management process. “Sometimes an enterprise information management strategy actually begins with e-discovery,” he says. “You might have a terabyte of information and need to separate out the relevant information, and then need to review it all. It’s a great way for companies to recognize the issue and begin the process of culling the information they have collected over the last 20 years.” That awareness can catalyze an improved approach to managing documents throughout their life cycle.
The changing role of outsourcing
Not every company has the resources for in-house e-discovery, and for that reason, some companies have traditionally sought outside litigation support. However, companies facing litigation have numerous options for bringing certain aspects of e-discovery in house. For example, they may invest in technology to support early stage efforts that reduce the volume of information requiring review and production. Litigation support companies are aware of the increasing prevalence and ease of use of e-discovery software. They are rethinking their roles and offering a spectrum of outsourced alternatives using a partnering approach.
One longtime service provider, Daticon EED, had been supporting customers with its proprietary e-discovery product, Discovery Partner, for many years, but has just introduced a new product called Discovery Express based on commercial products. “When we were founded in 1987, no commercial products were available,” says Ken Sokol, director of client solutions for Daticon EED. “Now, numerous products are available, and a growing group of companies wants us to manage the technology and bring in our expertise to assist clients in using it directly.”
Going forward, Sokol envisions a hybrid model in which Daticon EED offers its subject matter expertise both in legal matters and in technology, and its customers take on a role in e-discovery that will depend on its knowledge and resources. “What’s important to remember,” cautions Sokol, “is that e-discovery is not a push-button function, and it’s not an IT function. It’s a legal process, and companies need to understand both the regulations and the underlying logic of e-discovery.”