Canadian Lawyer

w w w . C A N A D I A N L a w y e r m a g . c o m N o v e m b e r / D e c e m b e r 2 0 1 4 19 Evaluate the options by dera j. nevin tECh support When making e-discovery technology decisions, remember what is right for one organization might not be right for another. S o you or your o r g a n i z a t i o n are considering purchasing or acquiring some e-discovery services, potential- ly including hardware. What is the best way to decide which or how many services you need? Is it important to own the e-discov- ery technology? This column will look at the options available for delivery of e-discovery services to organizations, be they corpora- tions or law firms. But first, I offer a definition of e-discovery from an organiza- tional perspective, which is different than the traditional one. We have been taught to understand that e-discovery is that process in litigation that deals with discovery of electronic documents, and is required because organizations have so much electronically stored informa- tion. While correct, it is not a sufficient definition because it defines the busi- ness process by one of only several possible objectives and omits organiza- tional context, which can in turn blind one to how services and products are actually required. I define e-discovery as "the non- routine externalization of data and documents from an organization, usu- ally in response to a legal, regulatory, or other defined event or project (i.e., a merger)." This definition in many ways provides a more complete framework from which organizations can evalu- ate their e-discovery needs. (Because I focus on "non-routine," this defini- tion can also assist law firms in the e-discovery technology buying process: do they really need e-discovery tools, or better utilization of practice support tools? Usually, the answer will depend on total data volume throughput, their clients' sophistication in e-discovery, and whether they are actually "in" the e-discovery business.) Once we understand that e-discov- ery will always involve externalizing ESI from an organization, we then under- stand that one important decision point involves understanding — for that orga- nization — the context in its business process in which that will occur, and why, and whether that is appropriate. Some organizations simply collect and send out documents so all processing and work against those records happens externally. Others do one of two things: establish a trusted repository of records, internally or externally, or bring more of the processing in-house. Both things either delay the externalization of records or reduce the total number of records being processed exter- nally. Once an organization gets past the "send all records out indiscriminately" phase, there are two basic e-discovery technol- ogy and service delivery models. Organizations can choose one or the other or a blend of both. The first is the "outsourced model." There are a few variants on this theme, but outsourcing generally amounts to this: an organization hires external expertise and infrastructure to get its e-discovery work done. External orga- nizations can be e-discovery service providers, consultants, vendors, or even law firms. Usually, the organization sends data out to one or more service providers that process, host, or review and produce the ESI. From an organi- zation's perspective, the ESI is already externalized so in deciding which tech- nology or service providers to use, it is frequently evaluating offerings accord- ing to customer service, IT and physical security, project management, techno- logical availability, and other factors. Mature organizations realize law firms are equivalent to service providers if they hold ESI for e-discovery purpos- es and are increasingly subjecting law firms to the same audit processes as other e-discovery providers. Inherent in the outsourcing model is that someone else is handling and pro- cessing organizational ESI. However,

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