Do-It-Yourself (DIY) eDiscovery: Good Idea or Train Wreck Waiting to Happen?
Over the past several years, the concept and associated technology to support Do-It-Yourself (DIY) eDiscovery has emerged within the litigation services and technology market as an approach that can increase productivity, provide users with more control over the process and ultimately reduce the overall cost of eDiscovery. Although there are use cases that prove the value of DIY eDiscovery, some people contend that DIY eDiscovery is not legally defensible. Others point to "headline" cases that suggest DIY eDiscovery can turn into a train wreck.
eDiscovery is the practice of identifying, collecting, processing, analyzing and reviewing Electronically Stored Information (ESI) that may potentially be pertinent evidence in a legal proceeding. Governed by and required under the Federal Rules of Civil Procedure (FRCP) along with many State and Local statutes, eDiscovery has become a major financial burden for many enterprises worldwide. Historically eDiscovery has been performed by outside counsel and litigation service providers. However, with the rapid rise in the amount of ESI that enterprises now have to manage, there has also been an associated increase in the cost of eDiscovery.
In a 2012 report by eDiscovery Solutions Group (eDSG) titled, "2012 Study of Global 250 General Counsel on eDiscovery," 51% of the respondents indicated that their top concern over the next 12 months was that they would be overwhelmed with ESI and 100% of the respondents indicated that their top concern was managing the cost of eDiscovery. As a result of these cost concerns, enterprises are beginning to investigate whether or not it makes sense to bring some aspects of eDiscovery in-house. According to a December 2011 article on the InsideCounsel website by David Meadows titled, "How to determine if DIY e-discovery is right for you," enterprises are asking questions such as:
- Can my organization better manage costs and increase control over eDiscovery?
- Can my organization hire the talent needed to manage and execute the in-sourced technology
- Which aspects of eDiscovery are best in-sourced or outsourced?
- Which aspects of eDiscovery are best left to my outside counsel?
- Under what circumstances should my organization be working with an outside eDiscovery expert?
Recognizing this emerging enterprise demand, some eDiscovery technology vendors are now offering DYI eDiscovery solutions. For example:
- Kroll Ontrack is marketing Verve™ Software-as-a-Service (SaaS) as a complete DIY eDiscovery solution.
- Nexpoint, a leading providing of cloud-based eDiscovery solutions has long positioned itself as a DIY eDiscovery solution.
- Xerox acquired Lateral Data, a provider of electronic discovery that was marketing a complete DIY eDiscovery solution.
- Deloitte acquired IE Discovery, a provider of electronic discovery that was marketing a complete DIY eDiscovery solution.
However, not everyone in the industry is "on board" with the trend toward DIY eDiscovery. In an article by Gene Petty, titled, "The Dangers of Do-It-Yourself eDiscovery: A Warning to Lawyers and Business Leaders," Mr. Petty builds a compelling case that electronic evidence needs to be gathered by a professionally trained third party in order to ensure that the collection and subsequent eDiscovery process is legally defensible. In a January 2013 article by Elizabeth Cohee, titled, "The End of Do-It-Yourself eDiscovery," Ms. Cohee states that recent revelations about the Casey Anthony Trial demonstrate that exclusive reliance on keyword searches compounded by DIY eDiscovery can undermine a case.
The accelerating volume of ESI is overwhelming to many enterprises as they struggle to comply with the legal requirements of eDiscovery. As a result, the overall cost of eDiscovery is also increasing, making DIY eDiscovery an attractive alternative to outsourcing eDiscovery to outside counsel and third party litigation service providers.
The stakeholders and decision makers within enterprises that are considering DIY eDiscovery certainly need to ask the right questions to decide which aspects of eDiscovery they should bring in house and how much they can actually reduce the overall cost of eDiscovery. As pointed out by both Gene Petty and Elizabeth Cohee, there are also legal and operational aspects of DIY eDiscovery that the enterprise must to take into consideration when making a decision about bringing eDiscovery in-house.
In the end, the opportunity to increase internal control over the eDiscovery process and to reduce the overall cost of eDiscovery will result in many enterprises deciding to move some aspects of eDiscovery to DIY eDiscovery.