A Schism Between ESI and Information Governance
Before the advent of electronically stored information, document discovery and information governance were concerned solely with the management of paper documents. As organizations began to embrace electronic documents and ESI exploded, visibility into and control over information became a nearly impossible task. In order to ensure that data needed for business purposes or data required to be kept by law was not lost, many organizations opted to store all of their ESI. As a result, electronic discovery has become costly and inefficient, and the idea of truly effecting information governance has all but disappeared.
The EDRM’s Incomplete View of Electronic Discovery
As electronic discovery became an increasingly important and costly issue, the model for an end-to-end approach to document lifecycle management including litigation, was the Electronic Discovery Reference Model ("EDRM"). Given existing tools, the EDRM was a comprehensive, reasonable, and realistic model that outlined each component of the document discovery process. However, the EDRM failed to address the underlying issues confronting e-discovery by not adequately focusing on the primary goal of proactive information management.
A Lack of True End-to-End Information Governance Tools
Following a realization that upstream records and information management have significant positive impacts on e-discovery, the Information Governance Reference Model (“IGRM”) emerged, emphasizing a full lifecycle approach to managing data, from creation to disposition. While several technology vendors, most born in the legal e-discovery arena, have attempted to expand their offerings to include end-to-end information governance tools, all have attempted to utilize a succession of point solutions that cannot manage data in place and therefore cannot manage it seamlessly or consistently.
Flawed E-Discovery Standards
Most enterprises only begin to worry about information management after a dispute, investigation, or litigation has arisen. However, an organization is at a significant legal disadvantage if it has not already ensured compliance with its retention policies, and cannot immediately access and hold potentially relevant documents.
Collection is also a critically flawed process, relying on over- and under-inclusive search terms that miss most of the relevant data. Not only is collection inaccurate, but it is also clumsy, error prone, time-consuming, expensive, and disruptive to the business.
The problem is exacerbated by the desire to reduce costs during document review, which too often relies on contract lawyers who may not have a thorough understanding of the case. It is not surprising that the outcome of rushing through the review of huge volumes of documents to meet discovery deadlines is both inaccurate and inconsistent coding.
Finally, enterprise data is made incredibly vulnerable throughout the process: from collection though processing and transmission to a hosted review platform, highly sensitive data is passed through too many tools. Most vendors and law firms that host data do not spend nearly as much on information security as their clients; many are not even able to monitor the security of, or report on attempted intrusions into their systems.