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Two sides of e-discovery

April 1, 2010

Last week I led a conference session at the Arizona IT Symposium on Managing Information for Litigation, Audit, and Regulation. The session presented the framework we use for assessing and improving an organization’s ability to meet the typical information management requirements associated with these compliance activities.

As useful as that framework can be—and as useful as I think some of the session attendees found it—we spent a good deal of time talking about a more fundamental issue, one that’s at the heart of how any organization structures its response to litigation, audit, and regulation, i.e., the distinction between pre-trigger and post-trigger activities. The distinction is important because an organization needs to approach these two sets of activities differently to be successful at each, particularly in the case of litigation management.

In this post, after clarifying the difference between pre- and post-trigger activities, I want to explore some of the key implications they have for organizations. I’ll mainly be talking in terms of litigation management, because this seems to be the area most of the clients I work with are interested in, but all of this will be generally applicable both to audit and regulatory compliance activities as well.

In the most general sense:

  • Pre-trigger refers to the information management activities that happen before a lawsuit hits the door (or you have reason to believe it will hit the door)
  • Post-trigger refers to those activities that happen after a lawsuit hits the door (or you have reason to believe it will hit the door)

Or to put it another way:

  • Pre-trigger information management refers to the way an organization manages its information day-to-day in the course of normal business activities (creating, editing, storing, sharing, and sometimes deleting things like Word docs, Excel spreadsheets, PowerPoint presentations, emails and attachments, and so on)
  • Post-trigger refers to how an organization manages its information to respond to a specific litigation event (often loosely referred to as the discovery process, or simply e-discovery)

So, for example, when a client tells me they want to “get better” at e-discovery, I begin by telling them that they really have two problems:

  • How to address the day-to-day information management that goes on upstream of any given trigger event and significantly impacts the quantity and quality of information that will be passed downstream after each trigger event
  • How to address the information management that goes on downstream of any given trigger event (e.g., legal holds, discovery, processing and analysis of resulting document set, and so on)

Although an organization will need to address both of these to “get better” at e-discovery (i.e., reduce the cost, risk, or disruptions to operations associated with litigation management), they get different results from each.

Pre-trigger: we’re talking about improvements to the activities generally associated with enterprise content management (ECM) at an organization, with particular emphasis on document management (managing content on shared drives, SharePoint, Lotus Notes applications, email, collaboration spaces, etc.) because all of this unstructured data is an e-discovery nightmare for most organizations.

Post-trigger: we’re talking about a few different things:

  1. Finding a reliable partner who can “back up a truck”, ingest all your relevant content, and then process it using the search terms and parameters you give them
  2. Finding the appropriate technology to help you search and analyze all your relevant content
  3. Performing process improvement on your current litigation management process to optimize it

The first of these is reactive—it happens in response to a specific litigation event—and does nothing to get you in better shape for the next litigation…it’s essentially money down the drain. If the organization does nothing else to improve its pre- or post-trigger information management, it will be writing this check over and over again forever going forward.

The second and third are proactive: they happen independent of any given litigation event. They are aimed at improving how the organization manages litigation response generally, and so in contrast to #1, they help the organization get better and spend less money in the future on litigation management.

However, it’s important to realize that the improvements an organization can gain from #2 and #3 above are fairly limited compared to what they can gain from pre-trigger improvements. This is a typical “end pipe” scenario, where the performance of the last steps in a process is tightly coupled to earlier steps. For example, print book production: if an upstream process like content development is a mess, improvements to the production process (typesetting, proofreading, printing and binding, shipping) will be successful initially, but meet with limited success long term.

We see this consistently with how organizations manage litigation. They can reap benefits initially from downstream (i.e. post-trigger) improvements, but in order to make real gains, they must eventually address their upstream (i.e. pre-trigger) information management problems because day-to-day information management practices dictate how much content is out there to be discovered in the first place.

Good information management hygiene (e.g. disposing of content according to the retention schedule, reducing duplicate information through the use of document management systems, moving off of email as a de facto archive or poor man’s collaboration tool, and so on) reduces potentially discoverable content, which, no matter how streamlined or how clunky your litigation management process is, will translate into less hours to process and therefore lower costs.

Poor information management hygiene (e.g., retaining content past its legal or useful life, keeping multiple copies across multiple repositories, reliance on email as a content archive or collaboration tool, etc.) increases potentially discoverable content, which will translate into more hours to process and therefore higher costs regardless of how good you are at post-trigger activities and will ultimately limit the gains an organization can reap from post-trigger improvements.

Now, once a client understands the difference between addressing pre-trigger and post-trigger activities (and the results they can expect from each), there’s no single right way to proceed. The best way to tackle these problems will vary based on organizational culture, the maturity of its ECM and litigation management processes, and its technology portfolio. But understanding the pre-trigger/post-trigger distinction is the first step towards improving their litigation management capabilities for the long haul.

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