Solution providers can play a pivotal role in helping customers assemble the right policies and technologies.

Ongoing confusion concerning the recently amended federal rules covering "e-discovery" continues not only among business people but even within the legal profession. Trouble within the latter group came to light recently with the release of a new e-discovery survey commissioned by Xerox Litigation Services.

E-discovery affects a wide range of electronic information, spanning everything from electronic documents to e-mails. The laws require this data to remain readily accessible, so if a legal action is taken against a company, the opposing attorneys may quickly receive potential evidence for their case. E-mails are a particular challenge to manage because they're often stored on individual hard drives and are rarely systematically erased.

"The amended rules were enacted about a year and a half ago, so you'd think that people would have gotten their arms around them by now. But they really haven't," says Jim Murphy, research director for AMR Research.

For solution providers knowledgeable about document management and related technologies, these problems can mean new opportunities to sell additional hardware and software, as well as to provide professional services to help customers navigate e-discovery confusion.

Legal questions

Xerox Litigation Services says e-discovery doubts were evident among the more than 200 legal professionals who responded to the recent survey. The uncertainties show the need for experienced solution providers to help companies develop e-discovery strategies, the company adds.

Although a 95 percent majority of legal professionals said they had faith in their company's ability to manage e-discovery, only 29 percent characterized themselves as "extremely prepared" to meet federal mandates covering the retention and retrieval of documents.

Similarly, 81 percent of legal professionals who review documents for litigation purposes expressed concerns about the current state of their in-house review systems. Problems included slow turnaround times, inadequate system support from software licensing companies and others, the lack of important features in their review solutions, and the inability of the IT department to support in-house document-review systems.

"The survey findings underscore the fact that being equipped for litigation is not as easy as it may seem," Craig Freeman, vice president, Xerox Litigation Services, said in a statement released with the survey results. "When implementing an e-discovery system, a holistic approach is the only sound strategy for success. Companies should identify a solution that will take into consideration the business culture, process and technology currently available to create a valuable program."

Fundamental challenges

E-discovery difficulties arise because the laws focus on the meaning or intent of information - a sale or HR issue, for example - not whether it's contained in an e-mail or a document, which is how document solutions typically organize information. "So it becomes difficult for companies to even define what their policies are," Murphy says.

Secondly, even after organizations overcome the policy-creation hurdle, they may find it difficult to get staff members to understand why the rules are important and to follow them. For example, salespeople may routinely save old e-mails from clients as a way of building histories for customer-relationship management goals. But storing outdated information, rather than deleting it when legally appropriate, adds to the e-discovery burden, Murphy points out.

Finally, companies need to decide how to manage e-discovery from an organizational point of view, not from a more typical department-by-department perspective. "Do we centralize all of our information so that it can be more easily accessible and discoverable in case we have to produce evidence quickly? Should we keep everything in a document-management system for seven years and save e-mail for three months before deleting it," Murphy says, ticking off two basic considerations.

Comprehensive solutions

The technology pieces that solution providers can assemble to address e-discovery represent a range of applications solidified by multifunction products (MFPs). The software pieces include not only document-management programs, for maintaining the quality and integrity of the information, but also modules for enterprise searching and for records management. "Records management ensures that documents of any particular type are retained for the appropriate period of time," AMR's Murphy explains. After that period, the software ensures the records "are destroyed programmatically when they can be destroyed."

In addition to technology, solution providers can advise clients on policy and management issues related to e-discovery. Both Murphy and Xerox's Freeman suggest companies focus on three key areas:

Develop a litigation game plan. Organizations are more likely to avoid fines and court sanctions over e-discovery failings when they implement formal strategies before litigation arises. The first time a company is tasked with litigation is not the time to learn the e-discovery process, Xerox Litigation Services says in an analysis of its survey. Consultants who prepare corporations for complex legal and regulatory matters can assist by strategically addressing cost and time efficiencies, Xerox adds.

Get organized. Xerox warns that disorganization complicates the entire e-discovery process by making it harder to identify and access needed information. A records management system coupled with an outsourced document retention program will enable the rapid identification of required information, the group says.

Build bridges. Because e-discovery presents different challenges to different departments, companies should create their policies using input from divergent groups. Solution providers may in some cases act as the liaison among these different areas. For example, Murphy says that he often sees an e-discovery "disconnect" between the legal department and IT. "Legal tends to make requests of IT without telling IT [staff] the sort of information that would help them anticipate the need," he says. His advice is to help the two groups find a common language for information management.

But fostering communications between these two departments isn't enough. "Their agreement will usually be, 'Let's get rid of everything as soon as we possibly and legally can because that reduces the legal liability and it reduces IT's need for storage," Murphy says. "But that doesn't bring businesspeople into the discussion. Many businesspeople say they need information for [customer] relationship information. So the first step is a big meeting [with multiple groups]. It might be ugly and painful, but that's how it has to be."