Summary of LegalTech 2010 – Are You Ready for Litigation?

As I walked into the Hilton on Sixth Avenue, I knew this conference was going to be good. The liveliness was present a few blocks away as some protesters were objecting the “pay by gigabyte” model for eDiscovery services.  After spending $4 to check my coat (thanks Hilton!), I walked into the expo hall and began my journey into LegalTech 2010.

First and foremost, I was amazed how many vendors offered eDiscovery solutions. Thanks to FRCP Rule 26(a), all electronic stored information (ESI) is admissible in courts. Many vendors have jumped on the bandwagon with the promise of helping litigation teams find the smoking gun. Most of the vendors I talked to at the conference blurred the lines between software and services. At one point, I was looking for the exhibitor who had the sign “me too”. This is clearly a market primed for consolidation (mergers, acquisitions, fall out).

I was able to learn about new technologies such as Nexidia who have this unique indexing facility to search audio files (without transcription). Redact-It from Informative Graphics has a comprehensive redaction facility to address data privacy requirements (for example, hide social security numbers from documents). There were only a couple of vendors who touted information governance – which was not a surprise.

Most of the vendors on the market look at eDiscovery as a reactive processes – sending in a SWAT team in the middle of the night to search servers. The high costs of litigation are now forcing companies to bring eDiscovery tools and the process in-house. However, companies need to look at the bigger picture.

Organizations need to be proactive and prepared for litigation – otherwise stiff penalties will ensue along with uncontrolled costs. Historically, records management and legal discovery were managed as two distinct domains. Moving forward, these two disciplines are coming together since they are both fighting to solve the same issue – the explosion of ESI and being prepared for litigation. 

It’s pretty simple – saving everything forever is not a sustainable solution. Corporations require a mechanism to policy-manage information and to align it to the correct levels of accessibility, protection, and retention.  This includes structured and unstructured content stored in disparate silos (i.e. ECM repositories, SharePoint, data warehouses, databases). Companies need to look for proven solutions to proactively manage information lifecycle while providing secure access to support eDiscovery.

Here’s the problem.  Being proactive costs money – and it costs money today! This is a time when budgets have been trimmed, resources are constrained, projects are being managed under a microscope, and priorities are constantly being scrutinized. I have heard people compare information governance to a number of things:

Dental hygiene – Jake Frazier, a Compliance and eDiscovery Attorney for EMC, used the analogy that if eDiscovery is the root canal, information governance is the brushing and flossing. If a corporation performs diligent maintenance of its information, there is much less content that has to be processed through eDiscovery.

Insurance policy – You pay your insurance premiums just in case something happens. You can’t decide to buy auto insurance after you get into a car accident. The same holds true with information governance and eDiscovery. Implementing an information governance program after you have a multimillion dollar lawsuit detailed in the Wall Street Journal will only help your next potential litigation.

These are great analogies. I personally like to compare the cost of information governance and eDiscovery to credit cards. If you pay now to have an information governance program, you will be better prepared and will pay less when eDiscovery happens. If you don’t have information governance, when a lawsuit occurs you will pay more for eDiscovery.

So, pay now or pay later. Regardless, you will pay.