Corporate Counsel’s Guide To Bringing eDiscovery In House

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Corporate legal departments face a unique pressure. As part of a business, they need to conform with standard business expectations like sticking to their budget, tracking their performance, and implementing helpful technology to keep up with the pace of change. Yet those proactive, business-first notions fly in the face of the traditional practice of law, which tends to be reactive, subjective, and grounded in precedent rather than innovation.

The field of eDiscovery offers a way to bridge those two worlds, as it exists at the intersection of legal practice, technology, and information governance. By managing eDiscovery in-house, corporate counsel can achieve business goals such as reducing costs and gaining a greater proficiency with technology while also meeting legal needs.

In this blog post, we’ll examine in-house eDiscovery—and the technology that makes it possible—from a couple of different angles. First, we’ll ask who should consider bringing eDiscovery in-house and what they might stand to gain. We’ll then give three specific tips for how corporate counsel can make the move to in-house eDiscovery. 

Contents: 

Who should consider bringing eDiscovery in-house?
Advantages of in-house eDiscovery for corporate counsel
How to get started with bringing eDiscovery in house
 1. Decide which stages you can manage in house
 2. Identify technology that will work for your needs
 3. Pilot in-house eDiscovery with low-stakes, high-volume matters
Corporate counsel can leverage technology to gain the benefits of in-house eDiscovery 

Who should consider bringing eDiscovery in-house? 

Thanks to modern eDiscovery technology, any company that wants to manage part or all of its eDiscovery needs in-house can do so. That’s because today’s technology is more intuitive than ever, making it easier to understand and use. The rise of cloud-based software-as-a-service (SaaS) technology also opens the door to companies that cannot afford the up-front investment, or the ongoing maintenance needs, of an on-premise solution.

If you’d like to make the transition from outsourced to in-house eDiscovery, ask yourself the following questions: 

  • What types of data do you need to collect, process, review, and ultimately produce and present? If you primarily work with traditional data types like emails and Word documents, you’ll find plenty of solutions that cater to your needs. If you have more complex data sources to accommodate, you may need to work harder to find appropriate resources. 
  • What volume of litigation do you typically manage? If you rarely encounter legal matters, it might not make sense to put in the effort to manage eDiscovery in-house. On the other hand, if you’re constantly juggling small claims, in-house eDiscovery could be a game-changer. 
  • Beyond just the number of cases you handle, what types of cases do you deal with, and how impactful are they? If most of your matters are minor HR disputes or small contract claims, you’re likely to benefit considerably from in-house eDiscovery. On the other hand, if most of your company’s litigation profile involves bet-the-company intellectual property disputes, you may need to continue working closely with your law firms and may have little to gain from moving more eDiscovery in-house. 
  • How big is your legal department? Do you have the staff to manage eDiscovery yourselves? Are you currently growing, or are you cutting staff and services? 
  • How mature is your legal team? We’re not talking about their propensity to tell knock-knock jokes; we’re interested in how adept they are at managing their current workload and balancing competing interests. The more advanced your team, the smoother your in-house eDiscovery implementation is likely to be. 

But why bother within in-house eDiscovery at all? We’re glad you asked. 

Advantages of in-house eDiscovery for corporate counsel 

Corporate law departments, as we noted at the outset, have a tough row to hoe. You need to keep your budget under control so you don’t derail an otherwise profitable venture. You also need to work efficiently so you have time to provide strategic guidance to the rest of your business units. Additionally, you also need to stay alert for opportunities to gain deeper knowledge about the business—its risks and opportunities for reward—so that your advice is informed, insightful, and useful. 

According to AlixPartners’ 2021 Litigation and Corporate Compliance Survey, the most pressing, top-of-mind concerns for in-house counsel include retaining more litigation-related work, conducting early case assessment, improving information governance, and controlling costs. All of these concerns can be alleviated by bringing eDiscovery in-house. With the right technology, you can: 

  • Save money. Instead of paying someone else to collect, process, or review your data, you can deploy eDiscovery technology to affordably and defensibly manage those processes in-house. 
  • Save time. Don’t spend time monitoring or babysitting another vendor or an outsourced eDiscovery partner; invest the time in learning to do it yourself, with the help of intuitive, scalable technology, and you’ll save time in the long run. 
  • Gain faster insights. When you manage your eDiscovery information in-house, you can accelerate your early case assessment—which will allow you to more quickly recognize risks and address them. 
  • Build your institutional knowledge. Why should an external eDiscovery vendor know more about your business than you do? When you manage eDiscovery in-house, you can see what situations are consistently causing you trouble, and you can design effective strategies to avoid those situations instead of paying for them over and over. 
  • Learn to predict problems. The longer you manage your eDiscovery information in-house, the more you can learn about your business and the ebbs and flows you face in litigation. That historical knowledge will eventually help you anticipate problems so you can respond to them more quickly—or prevent them altogether. 

What about defensibility, though? Are you opening yourself up to allegations of spoliation or self-interest by managing eDiscovery yourself? Not if you build a strong, repeatable, standardized eDiscovery protocol from the outset. Note also that the same modern technology that makes in-house eDiscovery attainable can also, to some extent, alleviate concerns about self-interest by “locking down” information and protecting it from attempted deletion or modification. 

Convinced that in-house eDiscovery is the right move for your corporate law department? Let’s turn to three easy ways that you can start making the transition. 

How to get started with in-house eDiscovery 

1. Decide which stages you can manage in house 

Not every stage of eDiscovery is equally amenable to in-house management. The Electronic Discovery Reference Model (EDRM) is commonly divided into two sides, with information-dominated tasks on the left—information governance, identification, preservation, and collection—and analysis-dominated tasks on the right—processing, review, analysis, production, and eventually presentation. Most corporations will find it easiest to start at the left side of the EDRM and gradually work their way to the right. 

If you manage nothing else in-house, you should at least take charge of identifying and preserving relevant information by implementing legal holds. Legal hold technology allows users to quickly and easily distribute legal hold notices and questionnaires, set up a system of reminders, and even shield information to prevent its accidental (or intentional) deletion or modification. 

What about the right side? With advances in artificial intelligence such as natural language processing, even sophisticated right-side stages like review are within the reach of corporate legal teams. These tools give users the ability to churn through vast quantities of data and accurately identify relevant information with a far smaller team of human reviewers. 

2. Identify technology that will work for your needs 

This almost goes without saying, but the quality of the tools you choose will have an enormous impact on your success. While you’ll need to establish a sense of your individual needs and preferences, as a baseline you should look for solutions that are cloud-based rather than on-premise, intuitive and easy to use, and supported by a strong customer support team. 

3. Pilot in-house eDiscovery with low-stakes, high-volume matters 

Don’t start your in-house eDiscovery journey with a complex, stressful, high-stakes case that could make or break the company. Instead, implement new eDiscovery technologies as pilot projects with your most commonly encountered, easiest to manage cases. Set yourself up for success by learning how to use your new tools on the bunny slopes first. 

Corporate counsel can leverage technology to gain the benefits of in-house eDiscovery 

In-house eDiscovery offers a fantastic way for corporate counsel to save money, save time, gain faster insights, build institutional knowledge, and learn to predict—and head off—problems. Of course, none of this would be possible without modern eDiscovery tools that use the combined force of automation, artificial intelligence, cloud-based deployment, and intuitive user interfaces to empower corporate legal departments and unlock the potential of in-house eDiscovery.

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