When asked if there was anything that kept him awake at night, the General Counsel at a Fortune 100 company pointed to the rows of cubicles outside of his glass enclosed office and said:
“Not knowing what they have stored out there. I don’t worry about what I know I have; but I’m scared to death of what I don’t know I have.”
This General Counsel understands the stakes. Not all do. In the serious business of litigation:
- How much time and effort does your company put into discovery readiness?
- Are you proactively dealing with your compliance requirements?
- With litigation prevalent and the stakes so high, do you want to wait for a complaint and request for production before you assess the relevant facts buried in your terabytes of storage?
You don’t know what you don’t know. But there are tools to help you.
U.S. Legal Support has counseled some of the top firms in the world on electronic document discovery. This knowledge has led us to examine tools and procedures that start review preparation earlier and earlier in the process, a process now universally known as Early Case Assessment.
- Over 95% of all user-created documents and writings exist in electronic format.
- Over 70% exist only in electronic format.
In an organization of any size – say, larger than a hot dog stand – documents, spreadsheets, presentations and especially emails pile up and up and up, multiplied by the number of people in the organization. E-mails are copied, forwarded, replied to, with and without attachments. Some are randomly deleted or filed in personal folders to try to organize the chaos.
When the specter of litigation arises, a firm needs to know as quickly as possible –
- Potential liability
- Potential defenses
- Where data are located
- Probable range of dates
- Possible holders (custodians) of relevant data
- AND – What it is all going to cost
Early Case Assessment tools – EMC SourceOne eDiscovery – Kazeon, Venio and Clearwell, for example – allow you to index and search data before discovery gets rolling.
An enterprise manager such as Kazeon crawls a live network, Microsoft Exchange, SharePoint, Lotus Notes, and all manner of file systems to index, search, tag, copy in a forensically-sound manner, and even place a litigation hold on relevant data. Kazeon allows you to run policies and rules against all of your documents and red-flag anything that might violate federal, state or industry regulations. It is a compliance officer’s best friend.
Modular tools such as Clearwell and Venio take exports of forensic images or raw files and offer fast and powerful culling tools to perform date filtering, custodian filtering and advanced searching, as they analyze document families and e-mail discussion threads.
In summary, early case assessment allows corporations and law firms to quickly get answers to the key questions of the day:
- How good is our case?
- How bad is our case?
- How much exposure are we facing?
- What is the case worth?
- How much is it going to cost?
- What are key terms and date ranges to include in the e-discovery plan?
- Are we sure that we have identified all the custodians relevant to the case?
Companies can take advantage of today’s powerful analytical tools to create a proactive environment, avoid compliance issues before they arise, and significantly reduce the cost of impending litigation. These tools give you the ability to know what you know and uncover what you don’t know before it bites you back. Yogi Berra was probably not thinking of litigation when he said “If you don’t know where you are going, you might wind up someplace else.” But he sure understood the importance of Early Case Assessment.
