The United States Law Week

INSIGHT: How Mature Is Your Legal Department When It Comes to E-Discovery?

May 6, 2019, 8:00 AM

Last year, EDRM at Duke Law School and Exterro partnered to develop the E-Discovery Maturity Quiz, a multiple choice quiz that e-discovery and other legal professionals can use to see where they stand compared to peers by industry and size in terms of using e-discovery.

The data from this assessment revealed that while organizations in highly regulated industries tend to have more mature e-discovery processes, many companies still struggle to identify, preserve, and collect data from “new” sources like social media and instant messaging. Additionally, even companies with mature e-discovery processes lack in terms of training capabilities.

Analysis of the data, undertaken by both EDRM and Exterro, yielded the report E-Discovery Maturity by the Numbers, which offers e-discovery professionals conclusions backed by a compelling data. With more than 200 respondents from organizations of 200 or more employees, the accumulated data provide ample opportunity to identify some key takeaways for in-house e-discovery professionals.

Some of the key takeaways are common sense. Larger organizations (of more than 10,000 employees) are consistently more mature than their smaller peers. Organizations that are more mature tend to have defined, documented processes and systems to ensure compliance and metrics to evaluate effectiveness.

Looking across the e-discovery process, organizations were best at closing matters; identification, preservation and collection; and information governance. This isn’t terribly surprising, given that matter closing is a largely administrative task, and investments in information governance, identification, and preservation lay a solid foundation for e-discovery, minimize the risk of sanctions, and build on in-house experience and knowledge of an organization’s IT infrastructure.

However, the data revealed some unexpected takeaways as well.

Industry Matters.

There were significant differences in maturity between industries. Highly regulated and highly litigious industries, such as pharmaceuticals and finance, tended to have more mature e-discovery operations. The lowest performing industries included construction and education.

Surprisingly, information technology was also among the laggards in overall e-discovery maturity as well. Upon consideration, this may not be a surprise, as companies in this space tend to take risks, embrace nimbleness, and may not have as cautious and risk-averse an outlook as more established firms.

“New” Data Types Still Pose Difficulties.

While most organizations can collect data from common data sources, like employee computers, shared drives, data archives, and cloud software, many fall short on employee-owned devices (BYOD) and social media or messaging platforms, as the table below illustrates.

The question, though, becomes, “When will the courts decide ‘enough is enough’ in terms of ‘new’ data types?” Social media and instant messaging applications are hardly new in the business world; Slack is almost six years old and corporate Facebook and LinkedIn accounts are essentially mandatory. For only half of enterprises to be able to identify, preserve, and collect from these data sources seems shocking.

E-Discovery Training Is Spotty at Best.

Oddly, the responding organizations showed the least maturity regarding training for e-discovery staff. Asked to consider why this might be the case, John Rabiej, J.D., Deputy Director of the Bolch Judicial Institute and former executive director for the Sedona Conference, theorized that there might be a relationship between organizational maturity and awareness of the complexity of e-discovery practices today.

“Organizations with strong self-maturity assessments have a good understanding of how complicated e-discovery has become and how much training is necessary to keep up with technological advancements.”

Therefore, he postulates, they assess their training maturity as deficient. “On the other hand, organizations with lower self-assessments of maturity rate their training maturity higher, because they may be unaware of how far behind they really are.”

This column does not necessarily reflect the opinion of The Bureau of National Affairs, Inc. or its owners.

Author Information

Tim Rollins is the E-Discovery Market Analyst at Exterro. He has written professionally for 15 years, the last 10 as a B2B marketing writer.

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