How to create a knowledge-driven discovery business while containing costs

Corporate legal department management is quickly changing from a legal to a business process. Legal professionals, along with their business counterparts, are looking critically at…

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February 5, 20196 minute read

Corporate legal department management is quickly changing from a legal to a business process. Legal professionals, along with their business counterparts, are looking critically at how to control costs and meet ever-tightening budgets. Gone are times wistfully referred to by outside counsel as “the salad days,” where the only cost controls law departments put in place were case reserves and ever-expanding litigation budgets. Running the legal department like the rest of the corporate business units is now the rule, not the exception.

With litigation costs—and particularly discovery and document review—comprising larger and larger shares of spend, this is a ripe area to impose cost controls. However, more often than not, even the most forward-thinking in-house legal professionals don’t have the tools or insight to know where they can improve in discovery spend. Rather, most of this information resides with any number of disparate e-discovery vendors and law firms, making it near-impossible to make real-time, data-driven decisions.

This is because most companies still manage their casework in silos, sending documents and data to multiple law firms and outside vendors, perhaps by area of expertise—when in fact many litigation and regulatory or government requests may involve the same documents. That means the same documents are collected, processed, reviewed and produced for each new matter. When that case is complete, the data and work product is dispositioned, and all knowledge is lost.

With the right technology, people and processes, in-house counsel and legal operations teams can evolve their discovery approach to make it a repeatable business process. When executed well, this allows legal departments to more effectively manage discovery, gain greater oversight and control of litigation and outside counsel spend and move from a reactive, siloed approach to a knowledge-driven strategic business.

Use technology-assisted review

Technology-assisted review (TAR) is a natural starting point for in-house counsel seeking to set eyes (or have counsel set eyes) on fewer, but more important, documents. TAR 2.0, advanced predictive analytics based on the continuous active learning (CAL) protocol like OpenText™ Insight Predict, allows legal teams to review far fewer documents than linear review (reducing collections by 80% or more) or earlier TAR systems, finding the most relevant ones first. When your team begins coding the documents, the TAR engine continuously surfaces the most likely relevant ones first based on the previous coding decisions.

Recent advancements in TAR have made it effective for more than large outbound productions—it equally is effective for nearly any review task of any size, for investigations, opposing party reviews, deposition prep, issue analysis and privilege QC. The result is that you can continue to increase savings on review and outside counsel fees for nearly every case.

While TAR is a starting point to manage review costs, it should be part of a holistic discovery strategy, discussed further below.

Centralize your legal data

Centralizing legal data into a core document repository is the key for efficient and cost-effective re-use across cases. In a siloed approach, coding decisions on documents from prior matters cannot be applied to future matters—even when many of the same “frequent flyer” custodians and documents are involved. Coding decisions and even attorney-client privilege documents may differ from one matter to the next, depending on the individual reviewer’s judgments. This increases the company’s risk of inadvertent exposure of sensitive information. When working in silos, you miss the opportunity to “review once and produce many times.” So documents that come up frequently in litigation need to be recollected and reprocessed, re-reviewed and reproduced each time—generating inefficiencies, unnecessary cost and risk.

Storing your company’s legal documents in a single repository like OpenText’s Insight Enterprise multi-matter eDiscovery management platform enables you to leverage prior decisions and documents and aggregate key metrics across cases, to support informed business decisions. Centralization also helps keep your data secure by allowing in-house teams to more effectively control access and limit the flow (or inadvertent exposure of) confidential or privilege data.

When using a multi-matter management system with a core repository, each new matter creates greater efficiency because data is collected and processed just once. When new matters arise, documents already collected, processed and reviewed can be assigned from the core repository to a new matter, and prior coding can be pre-populated, retaining coding decisions or “tags” such as privilege, confidentiality and other designations. Documents can then be efficiently reproduced across matters, allowing for a “review once, produce many times” workflow for commonly produced records.

Institute repeatable processes

An e-discovery playbook is one of the most powerful tools to drive efficiency and cost savings. If your department utilizes multiple outside counsel and vendors, it is likely that you have a hodgepodge of policies, procedures and workflows. This inevitably leads to inefficiency, increased risk and the constant reinvention of the wheel.

The creation and enforcement of a playbook creates standardization across your constellation of cases and matters. This allows for your policies, procedures and workflows to be the same, no matter the outside firm or vendor. By making the process repeatable, over time how you want e-discovery to be handled becomes rote. With this muscle memory, tasks are completed more efficiently and the risk of a mistake lessens.

Adopt business intelligence

By aggregating legal and discovery data, a core repository enables meaningful reporting and business intelligence (BI) for data-driven decisions—outside counsel and vendor spend, effective resource allocation across matters, budgetary impacts of custodian collections, case progress and other key performance indicators.

Cross-matter reporting can be used to track across enterprise custodians, collections, deadlines, review metrics and related legal spend, for each and every matter. More advanced technology will have capabilities for providing custodian profiles that track legal hold status, prior collection interviews, historical review metrics and more.

These analytics, compiled in systems such as OpenText Insight’s BI dashboard, are necessary for running your legal department efficiently.

Moving legal to a knowledge-driven business unit

Legal executives increasingly appreciate the opportunities afforded by capturing and re-using historical work product and documents where possible, and applying meaningful metrics to manage day-to-day discovery. The traditional silo approach makes that approach virtually impossible. By centralizing your data in a core repository and adopting a comprehensive BI strategy, your discovery efforts will result in substantial cost savings and move your department to a knowledge-driven strategic business.

For further information about turning eDiscovery into a repeatable business process download the free White Paper, Five strategies for effective oversight and control of eDiscovery spend.

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OpenText, The Information Company, enables organizations to gain insight through market-leading information management solutions, powered by OpenText Cloud Editions.

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