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In The News: Managing E-Discovery at Fast-Growing Companies

Below is a copy of a featured article that was highlighted on Legaltech news.

Corporate legal executives and their in-house IT colleagues at fast-growing companies face some unique challenges that impact their e-discovery management responsibilities.

John Del Piero, Discovia and Larry Wilson, Wilson Sonsini Goodrich & Rosati

November 06, 2017

Fast-growing companies face a variety of business challenges that are unique to their rate of expansion. For example, scaling a business quickly creates pressure on the management of cash flow, the development of internal workflows and quality control systems, and the retention of good talent.

Corporate legal executives at fast-growing companies in particular are all too familiar with another common pain point they face: how to manage their company’s e-discovery responsibilities in a rapidly changing corporate environment.

Here are five unique challenges that come with managing e-discovery at a fast-growing company and some thoughts on how corporate law department professionals can partner with their colleagues both inside and outside the company to achieve success.

1. Establish In-House Discovery Team
Having an in-house e-discovery team will enable the business to understand the landscape of discoverable systems, collection and technology issues, and policy gaps. An in-house team will introduce a consistent and defensible workflow for litigation and investigation lifecycles. The team will also be able to assess what type of tools to bring in-house, along with which capabilities exist within native systems.

“Establishing an in-house discovery department which handles legal holds, collections, early case assessment, and data reduction techniques will always minimize reliance on service providers,” said Ben Robbins, e-discovery, forensics, & information governance senior program manager at LinkedIn. “If a corporation can bring review tools in house and optimize how review is managed with partners it will further enable the corporation to take further control of costs.

2. Execute Legal Holds
Legal holds, otherwise known as litigation holds or preservation holds, must be properly executed in order to lay the foundation for a defensible discovery response plan. Legal holds can be especially difficult to administer in fast-growing companies because the nature of the business environment tends to be one of rapid change.

A defensible legal hold process requires a few keys, such as:

Issue the legal hold promptly;
Develop an efficient custodian interview strategy;
Carefully monitor compliance and issue updates; and
Emphasize importance of sound documentation.
With a good legal hold management software tool and a well-defined legal hold workflow, corporate law departments can minimize the risk of errors and process failures.

3. System and Data Inventory
An important way to limit the scope and ease the burden of e-discovery is to know where all of your data is stored in advance. In a fast-growing company, this is made more difficult by the reality that employees are moving quickly to hit ambitious business targets and development milestones—there is rarely time to pause and take inventory of the company’s underlying data landscape.

For example: Are your company’s emails automatically archived? Do you use cloud servers or on-premises servers? What types of electronic communications platforms do your employees use? It’s essential that all members of the team—in-house counsel, outside counsel and e-discovery service providers—are on the same page with respect to where the data resides in the corporate IT landscape.

4. Implement Data Classification and Retention Schedules
Fast-growing companies by their very nature are working at a fast and furious pace. The last thing that these executive teams want to worry about is the idea of insisting their employees begin practicing data minimization as a course of business.

“In spite of this cultural mindset, it’s important for corporate legal executives to establish policies and retention rules to begin the process of dispositioning data that is no longer necessary to retain,” said Robbins.

This process will defensibly enable the reduction of dark and discoverable content in redundant, obsolete and transitional stores. Each employee should only be granted access to data that is necessary to perform their job duties, and periodic audits may be needed to remind employees about how to refrain from duplicating information unless absolutely necessary and how to properly dispose of unnecessary data.

5. Build Relationships
Third-party e-discovery service providers can be valuable extensions of a corporate legal team. However, a common challenge that in-house legal departments face is obtaining consensus within their organizations to work with outside service providers who have dedicated experience in e-discovery management. This is especially true at technology companies, where there are often a number of brilliant and proud software development professionals lining the hallways.

Corporate legal executives need to make sure that company management understands the potential value of working with an outside service provider who offers efficiency-improving technologies and can help them better manage risk. This ultimately creates more bandwidth for in-house counsel to focus on more strategic concerns about how the legal department can add long-term value to the organization.

Corporate legal executives and their in-house IT colleagues at fast-growing companies—particularly those in the technology space—face some unique challenges that impact their e-discovery management responsibilities. By building an in house discovery team with a defensible process along with proper tooling and service partner selection, the investigation or litigation lifecycle may become a little lighter and the road a bit easier to navigate.

John Del Piero is Vice President of Global eDiscovery Solutions for Discovia, a Lighthouse Company that focuses on developing integrated partnerships with law firms and corporations to manage fast-moving, complex litigation and investigations.

Larry Wilson is a Certified Computer Examiner via International Society of Forensic Computer Examiners and a Certified e-Discovery Specialist via the Association of Certified e-Discovery Specialists. He was previously a senior litigation paralegal and is currently the e-discovery manager at Wilson, Sonsini, Goodrich, & Rosati.