by Mark Slabinski

Proactive eDiscovery, as its name implies, is preemptively establishing a framework to handle any litigation or regulatory searches or collections before it is needed in a real world situation.  It means that tools, resources, policy and procedure will be in place well before your company has to take legally-mandated steps for compliance or litigation. Being proactive with your ESI tends to fit naturally in both burgeoning and well-established governance strategies, and it can further help to highlight weaknesses in the established system.

Many organizations simply meet baseline compliance standards and react to more complex matters as they arise; this is a serviceable method, but leaves you vulnerable to the long-term pitfalls of poorly managed information governance (IG).  As your organization begins to retain junk data, your system becomes disorganized and your rapid response capability is diminished. This leads to increased costs, limited ability to retrieve information and internal disorganization.

Proactive eDiscovery does have an up-front cost as systems are set up and resources are allocated to outline, query and process data.  However, the ultimate payoffs can far exceed the initial investment. All it takes is a single costly settlement to show the worth of a proactive solution, as Merck found when they paid nearly a quarter-billion dollars in fines, fines that perhaps could have been avoided if they’d had a proactive solution in place.

Cost effectiveness also extends to the ESI sources themselves. Time is money, and improperly curated data can lead to lengthy delays when company-wide data stores need to be sifted for the relevant information. The costs pile up even more when an organization is relying on outsourced professional eDiscovery services. Of course, this is to be expected when only one percent of companies (as of 2011) feel that they possess an in-house eDiscovery solution capable of meeting their needs. This reactionary model is not an adequate replacement for an in-house, proactive system. Furthermore, the benefits of a proactive approach increase as the industries become more regulated.  For example, Law firms and hospitals benefit immensely from enforcing specific retention and organizational policies related to the multitude of regulations imposed on those industries.

Let’s look at another example from the litigation world. When two parties engage in a “meet and confer” session to discuss terms, production formats and the like, the advantage will go to the side who has the greater knowledge of their ESI stores and can meet the challenges of retrieving their data. Understanding where data is stored, retention schedules and having tools in place to search and collect responsive ESI are all tied to being proactive. The more the tools, risks and environment are understood, the easier it will be to focus your energy on the relevant tasks using significantly less resources.

EDiscovery is not about being able to respond to every possible contingency, it is about preparing for the inevitable. You need to understand that risk is going to be present no matter what you do. Even the best eDiscovery solution will not be able to protect you from data leaks, divested information or security breaches. EDiscovery is damage control, but proactive eDiscovery gives you the ability to actively engage with your data. EDiscovery is an evolving process that needs to be able to bend to accommodate sudden shifts in needs. Information is one of the most powerful tools at our disposal, and it would be a terrible waste not to proactively utilize it to its fullest.

Being proactive is not the be-all and end-all for problems your organization might be facing. If there are rampant internal issues (employee strife, harassment, hierarchical conflict), simply engaging with your ESI data stores in a proactive way won’t eliminate these issues, but will shed light on them making them visible and open to resolution. Next, it’s simply a matter of implementing the appropriate policies. There is little that cannot be improved by the additional oversight and control of a solution that empowers you to work with your own information. To be proactive is to maximize the return on your organization’s information and to protect yourself from the inevitable liability and expense of simply being reactive.

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