Technology has transformed the legal discovery process over the past decade, whether a complex case involving the Department of Justice and/or other regulatory agencies or a traditional civil action between two private parties. In the past, discovery was purely reactive and matter driven. However, according to David Bayer, Director of Product and Solutions Marketing for Iron Mountain (NYSE: IRM), today’s realities are quite different. Discovery—and particular e-Discovery—has become a proactive, critical business process “predicated on systematic governance policies and workflow.”
The modern corporate enterprise must deal with multiple (and often dozens of) matters that share common corporate data. These will often involve tens of millions of documents, Terabytes of data, huge databases, and multiple legal teams both across matters and even working on one case. The level of complexity requires corporate Legal Departments to implement a coherent approach with at least three fundamental goals. First, they must achieve cost predictability by moving beyond antiquated point solutions and engagements with multiple vendors. Second, they need to understand that (i) the manner in which their data is treated (e.g., storage, location, redundancy, destruction) and (ii) their search procedures (e.g., predictive coding) require that their chosen solutions be defensible under the reasonableness standards of the Federal Rules of Civil Procedure and Evidence. And third, they must simplify workflow through early case assessment and by favoring a single vendor solution that can meet the corporation’s end-to-end needs across all matters with a unified legal repository.
A corporation can deploy a unified legal repository (“ULR”) at the enterprise level in order to hold virtually all its data, including archives, file systems, and everything held on the company’s actual physical infrastructure (e.g., computers and servers). All of this information can be tagged so that there is no question as to its source. Attorneys can then work within the repository to select relevant data, define new matters with established security protocols and real-time access, save legal work product, and track and manage documents and said work product across matters, including privilege designations. For example, assume that Corporation (X) has closely related civil and regulatory matters. General counsel will want their teams to be aware of one another’s privilege designations and rationale, which a ULR provides in real time. As Iron Mountain’s Bayer states, sharing workflows simplifies processes.
The scale of ULRs requires that they be cloud-based. A corporate cloud may be either internal to the company or on a shared, public cloud. As I have written elsewhere, there are myriad benefits of cloud computing that no company can ignore. At the same time, cloud computing raises a variety of legal issues that General Counsel must master. Three are particularly important to ULRs: (i) physical security, which requires one to ask where corporate data is located, what disaster recovery methods are in place, and how redundancy of data will be ensured; (ii) network security and the implementation of different encryption standards for different types of data (e.g., health care, financial), and jurisdictional requirements; and (iii) access control that can both restrict information and grant permission to share native and produced documents between review teams and across matters.
The rapidly changing e-Discovery landscape offers Legal Departments a wide variety of technology solutions to tackle the issues related thereto. None of these is a panacea and a particular solution may best suit Corporation (Y) for various reasons. However, one thing is clear: Point solutions cobbled together from different vendors to address specific cases is no longer enough. Legal Departments must adopt a coherent approach to e-Discovery such as a unified legal repository that meets its needs across the enterprise and under one umbrella.