2015 saw a lot of developments on the eDiscovery front – amended Federal Rules, the Safe Harbor downfall, further crazy acquisition consolidation in the service provider space, and many changes in the technology we rely on. If you are corporate counsel charged with keeping up with all of this, you might be feeling a bit overwhelmed right about now. Will any of it make your job easier? Are you going to need to learn some new crazy technology that hasn’t been tested in the courts? How will your company’s IT initiatives impact your eDiscovery process and budget?
For those of you whose organizations have moved to, or will move to, Microsoft’s Office 365 Enterprise Edition (E5 specifically), your life may get just a bit easier, and your eDiscovery budget just might see a little relief. With E5, Microsoft enhanced the Compliance Center in Office 365 by integrating the Equivio advanced analytics functionality into Office 365 Advanced eDiscovery. So, good news for all of you Zoom fans, all that functionality is now a part of Office 365.
What does that mean to your eDiscovery process? All the stuff many of us have come to take for granted as routine in our discovery workflow, like deduplication, email threading, near duplicate detection, predictive analytics (or predictive coding), and conceptual organization or clustering for review (themes), is now part of Office 365 and can be done BEHIND the firewall (the cloud firewall that is) BEFORE you send data to your service provider.
Imagine running your searches, identifying e-mail threads and near duplicates, suppressing non-inclusive emails, non-unique attachments and exporting only the resulting subset to your service provider in a load-ready format for any of the industry standard review tools. You could also use predictive coding for early case assessment in internal investigations and smaller matters in which you may not want to incur traditional discovery charges (processing, hosting, etc.). The result? Better, more accurate information found more quickly in internal investigations. Processing and hosting costs would dramatically decrease. Review costs would similarly decrease as only inclusive emails and unique attachments would actually be reviewed (you know we lawyers can’t help ourselves; if it’s there, we’ll review it). Assuming appropriate review workflow and quality control measures are employed, review calls should also be more consistent and intuitively more defensible. Now that’s good news!
From an information governance standpoint, you might also find some interesting uses for the Advanced eDiscovery functionality. Imagine using some of the predictive coding and themes features you relied on in the litigation context proactively to predict non-compliant behavior in close-to-real time? Legacy data also continues to be a challenge as repositories grow larger and more unstable. If you know that at least some of the custodians are absolutely not subject to hold, and their data can be disposed of, maybe Office 365 and Advanced eDiscovery can help there too.
Assuming you can defensibly determine what to retain and what to discard, migration of legacy mailboxes and documents for some set time period into Office 365 might make that legacy data more manageable for discovery and investigation purposes, and ultimately easier to manage at disposition. Being able to leverage the power of analytics where the data resides opens the door to myriad information governance opportunities at a far more economical price point than ever before.
Sound like utopia? Not quite yet. Today, because corporate data lives in many places other than Office 365, and will continue to for some time, Advanced eDiscovery won’t be a panacea for solving all your discovery problems, but it can certainly be a powerful tool in your discovery arsenal as you look to manage your ever-shrinking discovery budgets and ever-expanding data volumes. As you would with any new tool, you need to make sure you understand the total impact on your current internal and external discovery processes, so that any necessary changes to your current processes continue to ensure defensibility. The good news is that the underlying technology is not new – it’s a use case for tested functionality that has now been incorporated into another mainstream technology tool – Microsoft Office.
What does that mean for you? Here are a few considerations you should be mindful of when you embark on your first Office 365 Advanced eDiscovery project:
Multiple Workflows. Remember that all of this only works on data that is residing within Office 365, so you need to establish a cohesive discovery plan that accounts for both Office 365 data and non-Office 365 data. You may choose for efficiency purposes to migrate non-Office 365 data into Office 365 first, or maintain two (or more) separate workflows. If you choose to maintain separate workflows, ensure that each is properly documented, and that the tools used for things such as deduplication and threading are consistent (or at a minimum identified so you know what you can compare and what you can’t—apples to apples and all that). It is important to remember that the new rules haven’t changed the fact that defensibility is still the hallmark of any discovery exercise, so you want to be able to explain what you did if you ever need to defend your process.
File Types. Right now, not every file type can be migrated into Office 365. If your case involves one of those, you will have to maintain a separate workflow. The types of files that can be migrated are always expanding. Check that your file type can be migrated, or determine if you need to convert to an accepted file type before you can migrate (e.g., Lotus Notes to Outlook .pst).
OCR. Have any non-searchable .tiffs or .pdfs? At the moment, there is no OCR capability incorporated into Office 365, so be sure to have a downstream plan for OCRing. But with Microsoft, I’m sure OCR can’t be that far off.
Data Privacy. Even the cloud has to respect data privacy rules. If your company has gone to Office 365 globally, you need to consider the logistics of using potentially separate Advanced eDiscovery workflows in each of the areas in which you do business, just as you would if your data were sitting in good old fashioned brick and mortar data centers. Currently, Microsoft is utilizing 24 data centers for its cloud, with two more German data centers coming online soon. Keeping abreast of what data is where, and what can or cannot be searched together, is essential in managing a global discovery project.
Size. Even though the Office 365 cloud is vast, right now the Advanced eDiscovery functions do not scale to the entire cloud all at once. There is a size limitation to how many documents can be analyzed at one time. As that capacity increases in future releases, scope your project accordingly, particularly if you will be utilizing the predictive coding technology and need to plan for training time.
Personnel. From a personnel standpoint, bringing more of the traditional culling work behind the firewall, while saving cost, can also increase risk for the company. Thought should be given to the best way to approach and staff this new workflow. Many companies have handled collections and pre-processing in house for years, and have extensive in-house teams of highly technical staff who, with appropriate training, will find this new workflow very easy to assimilate into their discovery procedures. Others may have moved to Office 365 precisely because they do not have strong in-house technical support. Most will fall somewhere in the middle. In order to achieve maximum cost efficiencies and maintain defensibility, work with counsel and a Microsoft eDiscovery Partner to design workflows and assign appropriate staff, internal or external, for each function, to ensure a smooth transition to the downstream discovery functions. While the technology facilitates, it’s the project management that will make or break your discovery project.
We may not have reached utopia yet, but the future looks definitely brighter with products like Office 365 Advanced eDiscovery in our toolkit. Armed with a solid roadmap and a well-thought-out strategy, we could be permanently changing the way we think about eDiscovery from the in-house perspective, and that’s a good thing. Now is the perfect time for in-house counsel to reignite its partnerships with the business, with IT and information governance colleagues, and to explore what benefits and efficiencies can be achieved. Office 365 Advanced eDiscovery just might be the platform legal, IT and the business need to demonstrate that managing legal risk, protecting vital information assets and achieving business goals can be accomplished at the same time.
Laura Kibbe, Managing Director of Client Services for RVM Enterprises, Inc. [email protected]
Published January 30, 2016.
