Of course, there is other – perhaps just as obvious – critical functionality for an in-house electronic discovery system. It goes without saying that any system must provide the in-house team with the means, broadly speaking, to collect data, process it, and view it. However, when looking at the specifics of available systems, it is clear that without full-featured capabilities in the following areas, an in-house electronic discovery system is a mere illusion, an abstraction, with the name “e-discovery” but without the means to actually accomplish the necessary tasks:
-- First, an in-house electronic discovery system should be able to handle all types of cases – there shouldn’t be a class of cases that it simply cannot act upon. For example, there are a set of cases – such as IP theft, FCPA, fraud, or employee disputes involving allegations of discrimination or harassment – in which hidden data may be critically important. Electronic discovery systems that rely on the computer operating system (such as Windows) can “see” only what the operating system presents to them, so this critical evidence can be missed entirely. Because of this, for an entire set of sensitive cases, systems that rely entirely on the operating system simply cannot be used. When choosing an electronic discovery system, why deploy a solution that can handle only some of your cases, when you can deploy a solution that can handle them all?
-- Second, an in-house electronic discovery system should disrupt the organization’s business as little as possible. Litigation is always somewhat disruptive, but the legal department and IT team tasked with gathering data are used to and can handle that disruption. What is crippling is when ordinary employees cannot focus on business because of litigation. Electronic discovery systems that rely on the operating system to find and collect potentially relevant data not only cannot find hidden data, but they cannot even collect files that are in use by the custodians – for instance, every custodian will have to exit from Outlook before you can search and collect their PSTs. Imagine the scenario for frequent custodians . . . good luck calling the CEO repeatedly to tell him to get out of Outlook, or calling the CFO over and over again to tell him to close his spreadsheet so you can search it – why deploy a solution that requires you to harass your custodians, when you can deploy a solution that does not bother them at all?
-- Third, an in-house electronic discovery system should offer the ability to enhance your position by cleaning up data before litigation strikes. There is a reason that the very first box in the EDRM is labeled “Information Management” – in order to reduce data volumes, cost, and risk, it is advantageous to get rid of outdated data, yet many systems claiming to offer in-house electronic discovery offer no capabilities whatsoever when it comes to cleaning up data from laptops, desktops, and servers. With EnCase® you can get rid of data that is no longer needed; why deploy a system that can focus only on the case at hand, when you can deploy a system that also offers the capability to identify and clean up problematic data?
-- Fourth, an in-house discovery system should be able to process your data without missing potential evidence. For instance, suppose you want to run a compound search – say, “(dog or cat) w/5 (house or tree or yard)” – across your custodians’ data, and a key custodian sent an email that had as an attachment a zip file, in which there was a Word document, and in that Word document there was a spreadsheet, and in that spreadsheet there was a PowerPoint presentation . . . there are so-called electronic discovery systems being marketed today that would not search that PowerPoint presentation at all – with embedded documents, they only search two or at most three levels deep, and they don’t even tell you about that limitation, so you review your results thinking you’ve searched the data set, when in fact you’ve only searched some of it. There are other systems that cannot even run the kind of compound search shown above – the kind of search lawyers have been running for years in Lexis and Westlaw. Again, why deploy a partial system when you can deploy a full-featured system that gives you the confidence you need to make case decisions?
-- Fifth, when you use an in-house electronic discovery system, you shouldn’t have to worry about metadata – the system should automatically preserve all file and email metadata, so that you can avoid haggling with your opponent about which metadata fields are relevant, and, more importantly, avoid the problems that have befallen litigants who failed to properly preserve metadata. When it comes to metadata, if you use an in-house electronic discovery system worth its salt, properly handling metadata is not difficult and is not something that should worry you; if you don’t use such a system, however . . .
-- Finally, an in-house electronic discovery system should not limit your capacity or number of cases. The whole idea of bringing the electronic discovery process in house is to reduce risk and lower cost; the old approach of outsourcing led to operating expenses skyrocketing whenever a large case hit. If you are bringing electronic discovery in house, why buy a solution that charges you by the volume of data, or, even worse, only provides you with a set amount of data capacity, when you can buy a comprehensive solution for a fixed price that lets you tackle an unlimited number of cases and an unlimited amount of data?
Victor Limongelli is Guidance Software's president and chief executive officer.
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