Legal Professionals Facing E-Discovery Challenges

Legal professionals have yet to close the case on e-discovery according to a survey commissioned by Xerox Litigation Services. E-discovery doubts surfaced among the more than 200 legal professionals surveyed, indicating the necessity of experienced and skilled outsourced solution providers.

The majority (95 percent) of participants expressed faith in their company’s ability to manage e-discovery – which involves identifying, producing, filtering and storing data from e-mails, memos, and databases used as evidence in litigation and regulatory compliance matters.

However, only 29 percent judged themselves to be "extremely prepared" despite federal legislation that mandates the retention and retrieval of documents, often attempted through inadequate in-house solutions.

"The survey findings underscore the fact that being equipped for litigation is not as easy as it may seem," said Craig Freeman, vice president, Xerox Litigation Services. "When implementing an e-discovery system, a holistic approach is the only sound strategy for success. Companies should identify a solution that will take into consideration the business culture, process and technology currently available to create a valuable program."

Among the 81 percent of legal professionals involved in reviewing documents for litigation purposes, the survey uncovered concerns about current in-house review systems. These issues included:

• slow turnaround (42 percent of respondents)
• inadequate system support (41 percent) from sources like software licensing companies
• lack of important features (41 percent), which may include expanded search options and software updates
• IT department could not support the in-house document review system (38 percent)

These same legal professionals also cited the benefits of outsourcing the e-discovery process to include cost-effectiveness (35 percent) and decreased processing time (53 percent).

There are ways for legal professionals to gear up for litigation and take control of the process, noted Freeman. He offered the following tips:

• Have a litigation game plan – Companies with policies and procedures in place before imminent litigation are more likely to prevent court sanctions, avoid substantial fees and better manage deadlines.
• Software doesn’t equal a solution – Implementing records management software is only part of e-discovery preparedness. Outsourcing providers can manage a comprehensive litigation solution from records management and discovery through trial.
• When in doubt seek external advice – The first time a company is tasked with litigation is not the time to learn the e-discovery process. Consultants that prepare corporations for complex legal and regulatory matters can assist by strategically addressing cost and time efficiencies.
• Get organized – Disorganization can make the entire e-discovery process more complicated, particularly in the areas of identification and acquisition. A robust records management system coupled with an outsourced document retention program will enable the rapid identification of required information.
• Work together – A disjointed in-house effort could lead to costly delays and legal ramifications. IT, operations, security, ethics, finance and legal departments need to be adequately trained and work hand-in-hand to ensure a smooth discovery process.

Survey Methodology: The survey was conducted by Kelton Research between Feb. 25, and March 3, 2008 using an e-mail invitation and an online survey. Results of any sample are subject to sampling variation. The survey had a margin of error plus or minus of 6.9 percentage points.