Turning Your Expensive eDiscovery Model into Non-Litigation Corporate Cost Savings

By Kristin Casler, featuring Todd Haley of eTERA

The amount of data that companies must manage is staggering, and continues to grow each year. As a routine part of your day-to-day operations, you maintain systems to collect and store electronic records and data and to produce them, when required. Despite your preparations, ediscovery is a costly endeavor.

Here is some good news: Sharing your ediscovery knowledge and resources with compliance, risk management, cybersecurity, human resources and other data-heavy departments can add up to an overall corporate cost savings.

“Data is data—it’s about process and protocol,” said Todd Haley, Vice President of Business Intelligence at eTERA, a litigation consultant. “You have a large funnel. What goes into the funnel and what goes out of the funnel for litigation, compliance, risk or incident response may be different, but the process is exactly the same.” Anywhere in the company where documents and data are found is fertile ground for applying ediscovery software and models. It’s as simple as having a large chunk of data and needing to boil it down to just the data that matters.

Adding Value
Haley, a self-described technologist, said corporate counsel don’t often make the leap between multiple data divisions. Or, they may meet resistance when trying to push the ediscovery model toward their risk, compliance and other departments. Those departments often have their own software. Sometimes, even the software providers don’t cross-market their products. eDiscovery software companies and risk-management software companies sometimes prefer to stick to their comfort zones.

“But combining efforts among departments can save costs,” Haley said.

Since the legal department is often ultimately responsible for the legal components of the other departments, it makes sense for corporate counsel to take the lead.

Cross-Application
Consider the application to risk management. You have an entire network of data. By filtering keywords and concepts and using ediscovery tools, you can boil all of that data down to just the documents that must be examined for risk components.

As an example, Haley cited an insurance company that was targeting its employment litigation risk. What potential was there for harassment? For discrimination? By looking for documents and emails that included disparaging language or terms or involved employees with protected status, the company had heightened supervision of its employees and was able to head off potential problems. The documents or data found needed to be moved and stored. More importantly, though, the company was able to act quickly to halt any misconduct and deal with employees who may have violated internal policies or state or federal laws.

The ediscovery model applies just as readily to a company’s compliance with federal laws and regulations. A large network of data involving offices around the world can be searched and accessed. And just as with employment issues, compliance issues can be segregated, documents stored securely and any violations dealt with.

Handling healthcare records under the Health Insurance Portability and Accountability Act (HIPAA) is a chief concern these days for medical systems and insurers. Managing the data with an ediscovery model allows companies to search for keywords, identify relevant data, remediate it and move it somewhere else, Haley said.

An energy company with a policy prohibiting storage of any personally identifiable information on public or shared networks used its ediscovery model to examine multiple subsidiary corporations to ensure the policy was being followed. Haley said he turned up a very large number of violations and moved the offending data to a secure location.

Have a Big Funnel of Data?
For corporate counsel who have an ediscovery model—and those who don’t, but should—it makes sense to apply those principles to data in other divisions in the organization. These forensic tools can unearth information no matter where it lives.

Best practices include:

• Checking your internal policies and manual to make sure they spell out the Electronic Discovery Reference Model (EDRM)
• Establishing a process for identifying documents and data
• Creating a model for how to remediate that data
• Analyzing the information
• Executing on the findings—actually moving data from one place to another and/or taking disciplinary action or corrective measures involving employees and making any policy and procedure updates

“eDiscovery involves people, process and technology,” Haley said. Ironically, the technology is the least important component. “Some people get the technology first and then try to find an issue that needs addressing. The better practice is determining your issue and finding the right technology to resolve it.”