If your industry exposes you to frequent lawsuits or regulatory review, you need a proactive ediscovery plan and system.
Discovery is a legal term for the process of gathering, submitting, and obtaining information from all parties to a lawsuit or regulatory violation action. Ediscovery is the general term used to describe the discovery process involving electronic communications and information. Ediscovery includes email messages, IM messages, text messages, documents in electronic format, and computer logs, records, and reports.
Ediscovery solutions organize and manage the unstructured information created in email, IM, and text message, electronic documents and spreadsheets, and computer and system logs. Ediscovery solutions will identify, collect, preserve, and process information that might be useable in litigation. A good solution will integrate into existing business processes and do its job without business disruption.
But how do determine the features you need to fit your organization and industry? Ursula Talley, vice president of marketing for StoredIQ, a provider of information management technologies, prepared a list of 10 tips for choosing an ediscovery solution. The tips were developed by StoredIQ from questions posed at conferences and trade shows, and in consultation with lawyers specializing in ediscovery.
Standards—Make sure your solution covers the full breadth of the ediscovery process as defined by the ediscovery industry's Electronic Discovery Reference Model (EDRM) standard. Your solution must cover everything from information management, identification, preservation, and collection, to processing, and early case analysis-handing over only the smallest legally defensible set of data to the legal review team. Otherwise, you'll have to cobble together multiple solutions from multiple vendors, and create a bigger headache for yourself. Not to mention the compromised audit liability point solutions present.
Open Integration Platform—Insist on an open integration platform that supports multiple email systems, storage systems, archiving systems, and content and document management systems. If you're in the process of migrating data from a Novell server to an EMC Celerra, or vice versa, for instance, you'll need something that can read files from both. Your solution should read data from shared file servers, desktops and laptops including Macs and PCs, from content management systems such as Microsoft SharePoint and EMC Documentum, as well as from storage systems including EMC Centera, NetAPP, Hitachi, and IBM.
Low Impact—Make sure your solution executes without impacting employee productivity. Flexible job scheduling allows processing to occur after hours, when employees aren't around, and it's essential to be able to perform litigation holds without disrupting your knowledge workers' production environment.
Close Coordination—Be sure your system works in conjunction with existing corporate records management policies so when you lock-down documents for litigation holds, you coordinate with ongoing IT data management functions such as data backup, migration, and file expiration/deletion. Implementing an effective litigation hold strategy requires close coordination with your corporate records management policies so that documents responsive to an active legal matter are not inadvertently deleted.
Topology Map—Be sure you can create a data topology map that identifies electronically stored information by a full complement of variables, including system location, custodian, access time, size, and content type. It's critical to be able to perform prediscovery data profiling so you can manage it, know your liability, and quickly respond to legal requests.
Ongoing Availability—Your solution must make available all relevant and responsive electronically stored information to legal, HR, or audit teams prior to the completion of the collection process. Even while collection and preservation are ongoing, you should be able to call up what's saved, what's indexed, and what's relevant information today.
Easy Interaction—Your solution should be able to interact with electronically stored information without changing the data. It's critical to preserve the integrity of existing data. Don't let your software alter document properties when copying or moving it, because those properties themselves are important to maintain legal defensibility.
Audit Trails—Check to see if your prospective solution can execute forensically sound collection policies while providing defensible and comprehensive audit logs. These audit trails show where data originally resided, what search terms were applied to collect it, and when copies were made. Attaching unique digital signatures to files before and after they are collected proves that none of the actions performed altered the original content.
Search—Your solution must provide rich and sophisticated search capabilities. Are you able to search and identify terms and natural language concepts within files, as well as within emails and their attachments? Besides being able to search on common metadata and simple text strings, are you able to perform sophisticated natural language-based searches that can differentiate between Will, the name, or will, the legal document or will, the auxiliary verb? Accuracy provides the smallest legally defensible set of data to be reviewed by the legal team, significantly reducing ediscovery time and cost.
Deployment—Be sure your solution is easy to deploy and maintain. If you have to spend weeks or months getting a system working before it can even begin accessing, categorizing, and reporting on information, you're at a huge disadvantage. Ideally, look for a self-contained, out-of-the-box appliance combining hardware, software, and storage that can provide results back to you within 24 hours.
Talley also suggests assembling a cross-functional team when considering acquiring and implementing a proactive ediscovery solution. Gathering representatives from IT, legal, regulatory compliance, and human resources will make the solution more workable, and the departments they represent will carry the responsibility of ongoing maintenance and use.
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