The three biggest problems in e-discovery are volume, volume and volume. Until now, we, as a community, have taken a largely piecemeal approach to solving that problem, but any real answer will require a systems approach to electronically stored information (ESI).
An organization’s 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. Attempts to “move left” in the Electronic Discovery Reference Model to manage information earlier in the process are helpful, but not enough. Attempts to move toward information governance as a method to control volume are in the right direction, but still not enough.
Systems thinking is a holistic approach to problem solving that seeks to understand how things influence one another within the whole. Systems thinking 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.
Although not yet widespread, 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. Viewing the patient in his or her home environment and community has additional benefits. Patients with chronic conditions receive a disproportionately high share of health-care services (e.g., making excessive visits to hospital emergency rooms), costing a disproportionate share of health-care dollars. Holistic management can both help control costs and improve the health of chronic patients.
E-discovery can suffer similarly from fragmented care and lack of coordination. In e-discovery, treating matters individually can lead to the same ESI being processed many times, stored on multiple servers, and can lead to such problems as inconsistent privilege calls. 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:
Information life-cycle management;
Technology and automation;
User behavior and role analysis; and
Each of these is part of the overall ecosystem of ESI. Although analyses of ESI processes are often described as linear, they are complex, dynamic systems where changes made at one level affect the operation of the system at other levels. This tendency toward widespread cause-and-effect often leads to unintended consequences of our actions.
Many organizations limit the disk space available for each email box to a certain amount—a gigabyte, perhaps. This limitation should 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 analyzes the custodians whose ESI collection, processing and review costs the most annually. These may be the custodians who most frequently figure into litigations, but they could also be less common custodians who, for one reason, are more expensive to collect, process or review. A systems analysis can help us understand why these people cost more and help to develop 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 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. Among the other sources of document value: business value, regulatory value, personal value, legal value, storage value (usually negative—that is, a cost), investigatory value, cultural value. All of these sources must be considered when formulating ESI practices and policies. It is easy to focus on our own special interest in e-discovery and lose track of the other sources of document value.
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. E-discovery value is not the same as business value and may conflict with it. Minimizing the cost of storage may increase the difficulty of conducting investigations or lead to legal risk from failure to preserve important information. Recognizing the complexity of the ESI systems implies that multiple measures or indicators must determine the success of the approach.
A systems approach to ESI is difficult, but it need not be overly expensive either. The cost of the approach is part of the context that must be evaluated and measured. No one group has all of the tools needed or all of the skills to manage a complete systems analysis. It requires input from subject matter experts who can collectively evaluate the multiple values of ESI and can measure the success of a system to deal with it. It implies a team approach, where the team must minimally include technological, legal and business expertise. 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 managing ESI. •