The three biggest problems in electronic discovery are volume, volume and volume. Until now, the approach to solving this problem has been largely piecemeal, but any real answer will require a systems approach to electronically stored information.
An organization’s electronically stored information, or ESI, is not just a pile of electronic files. It is part of the entire “ecosystem” of that organization. Dealing with ESI on an ad hoc basis is common in e-discovery; trying to manage it when a case is pending is wasteful and becoming prohibitively expensive.
Systems thinking is a holistic approach to problem solving that seeks to understand how things influence one another within the whole. It emphasizes the relationships among the parts over the individual parts themselves. ESI is itself a system, embedded within the larger system of the organization and the still larger systems of business, law, government and society. Gaining control of ESI requires us to consider its role in these systems and the influence that the decisions we make concerning ESI affect and are affected by the needs, practices, structures and values of these larger systems.
One area where systems thinking has had substantial benefit is in health management. Treating the whole patient, including coordinating the treatment of multiple specialists, has both health and financial benefits. As in health care, e-discovery can suffer from fragmented care and lack of coordination. In e-discovery, treating matters individually can lead to processing the same ESI many times and storing it on multiple services. Managing the ESI in a systemic context can reduce the cost of dealing with these data and improve consistency.
A systems approach to ESI includes records management; information life-cycle management; information governance; compliance; e-discovery; technology and automation; user behavior and role analysis; and operations analysis. Each of these is part of the solution and part of the overall “ecosystem” of ESI. Although analyses of ESI processes are often described as linear, they are, in fact, complex dynamic systems wherein changes made at one level affect the operation of the system at many other levels, leading to unintended consequences.
Many organizations, for example, limit the disk space available for each email box, perhaps to one gigabyte. This limitation is intended to make the management of the email server easier, but one consequence is it forces users to store email they value in other locations. Saving money on email server storage has the unintended consequence, among others, of making collection of that person’s ESI considerably more expensive.
Another question that illustrates part of this systems-thinking approach is: Which custodians cost the most annually for ESI collection, processing and review? They may be the custodians who most frequently figure into litigation, but they could also be less common custodians whose materials are more expensive to collect, process and review. A systems analysis can show why these people cost more and can help in the development of policies and methods to address those costs.
Digging deeper, electronic information has value and cost for the organization. One reason ESI is so difficult to deal with is that it was never designed for e-discovery. Electronic information and its storage and the policies that govern it all were designed to fulfill business functions within an organization. A systemic approach to information governance cannot lose sight of the primary purpose of this information. It is easy to focus on our own special interest in e-discovery and lose track of the other sources of document value, which include business value, regulatory value, legal value and more.
Success with a systems approach requires measurement or, more likely, measurements of system performance. Lowering the cost of e-discovery by itself is a laudable goal, but it may affect the organization’s ability to do business. Minimizing the cost of storage may increase the difficulty of conducting investigations or lead to legal risk from failure to preserve important information. A systems approach may not be as easy as focusing on only a small subset of the variables, but it is likely to be the only way we can truly bring down the cost of e-discovery and ESI management.
Herbert Roitblat is chief technology officer and chief scientist at OrcaTec LLC in Los Angeles.