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About EMC
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Bringing eDiscovery
In-House
FOR

DUMmIES
‰

EMC COMPLIANCE PRACTICE
SPECIAL EDITION

by Jake Frazier, Esq.,
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Contents at a Glance
Introduction.......................................................1
Chapter 1: Understanding the Problem ................5
Chapter 2: Assembling a Cross-Functional
Task Force .........................................................9
Chapter 3: Communication: Can’t We All
Just Get Along?................................................15
Chapter 4: Taking It In or Leaving It Outside .....21
Chapter 5: Selling the Vision Internally .............27
Chapter 6: Building an Implementation Plan......31
Chapter 7: Working with a Quality Policy..........35

Table of Contents
Introduction .......................................................1
About This Book .........................................................................2
Foolish Assumptions ..................................................................2
How This Book Is Organized......................................................3
Icons Used in This Book.............................................................4

Chapter 1: Understanding the Problem .................5
The Phases of eDiscovery..........................................................5
Preservation and Collection ......................................................6
Processing....................................................................................7
Review and Production ..............................................................7

Chapter 2: Assembling a Cross-Functional
Task Force..........................................................9
Putting the Team Together ........................................................9
Legal Meet IT, IT Meet Legal ....................................................10
Records Management...............................................................12
Human Resources .....................................................................13
Security ......................................................................................13
Lines of Business ......................................................................14

Chapter 3: Communication: Can’t We
All Just Get Along? ...........................................15
Skipping the Slang, Junking the Jargon, Axing
the Acronyms ........................................................................15
Spend Some Quality Time Together .......................................17
Legal Can Learn IT’s Lingo.......................................................17
IT Can Learn Legal’s Lingo.......................................................18

Chapter 4: Taking It In or Leaving It Outside ......21
Making Up Your Mind about Preservation and Collection ...21
Deciding What to Do with Processing ....................................23
Making the Decision on Review and Production ..................23
The review process ........................................................24
Hosting data in the review tool.....................................24
The actual review of documents ..................................25

vi Bringing eDiscovery In-House For Dummies

Chapter 5: Selling the Vision Internally ..............27
Using Scare Tactics ...................................................................27
Pooling Resources: ROI ...........................................................28

Chapter 6: Building an Implementation Plan ......31
Starting from Square One.........................................................31
Project Management.................................................................32
Establishing a Timeline ............................................................32
Setting Milestones for Your Plan.............................................33
Paying for Your Plan .................................................................33
Training the Staff.......................................................................34
Review and Evaluation .............................................................34

Chapter 7: Working with a Quality Policy...........35
Slipping into the Sixth Sigma...................................................35
Using Homegrown, In-House Quality Solutions ....................37

Introduction
I f the rash of corporate scandals in the early part of this
decade has taught us one thing, it’s that e-mails live
forever. After seeing corporate executives go to prison based
largely on e-mail and other digital evidence retrieved from
computer systems, virtually every government investigator
and party to a lawsuit wants to get their hands on any
potential electronic evidence.

To ensure that nobody gets any bright ideas (“Let’s just delete
everything!”), various governmental agencies have introduced
laws, such as Sarbanes-Oxley and SEC 17a-4, that set forth
document retention requirements with very heavy sanctions
for noncompliance — even jail time! Dozens of courts have
levied costly and embarrassing sanctions on parties of law-
suits that couldn’t properly produce their electronic records.
The Federal Rules of Civil Procedure were even amended
recently to accommodate and govern this new phenomenon
as it relates to litigation. The process that corporations and
government agencies go through to search, preserve, and
eventually review and produce their relevant electronic data
to satisfy their production obligations under these rules is
generally called electronic discovery, or eDiscovery for short.

Initially, most organizations could barely keep up with their obli-
gations to produce data. The last thing on their collective minds
was whether the process they were using made financial sense
and could be built upon to make future eDiscovery requests less
painful. Some thought the issue would be a flash in the pan and
would soon subside. Now that a few years have passed, most
organizations have come to understand that performing
eDiscovery is a cost of doing business that isn’t going away.

Now that eDiscovery is here to stay, enough quantitative data
is available to analyze related processing and spending habits
and improve them, just like any other business process. Most
corporations are firm believers in avoiding future problems
by adopting good preventative habits. Think of it as good
virtual brushing and flossing to avoid a costly root canal
down the road.

2 Bringing eDiscovery In-House For Dummies

Larger organizations may well find that they spend millions
or even tens of millions of dollars per year fulfilling their
eDiscovery obligations. Much of this expenditure is allocated
to sending data to outside vendors, consultants, and law firms
for costly processing and review. Up until now, this was neces-
sary because the machinery and equipment, proprietary soft-
ware, and expertise simply weren’t readily available for a
corporation to purchase and implement successfully. When
these became available over the past few years, it was still
somewhat difficult to internalize. From a budgetary perspec-
tive, not enough was known about this phenomenon to make
sound financial decisions about obtaining a positive return on
investment. Now, the time is ripe for many organizations to
seriously consider bringing eDiscovery in-house.

About This Book
Creating and implementing an eDiscovery solution for your
company can be a monumental effort — that’s why some busi-
nesses exist to handle the whole process for you. Taking over
some or all of those responsibilities for yourself can be a
daunting task. So you need to understand as much as you can
before you start making decisions.

This book helps you analyze the issues surrounding in-house
eDiscovery, so that you can determine what is right for your
organization. You’ll see what processes can effectively be
brought into your operation, and what challenges you’ll face
in implementing those changes. After all, nobody ever said
saving money and time was going to be easy.

By the time you’re finished with this book, you should be able
to analyze the needs of your business and decide what por-
tions of the eDiscovery process you should perform yourself.
Whether your company wants to take on a little or a lot, you
at least know the direction to go.

Foolish Assumptions
You don’t have to be a computer expert to understand this
book, but we didn’t start from square one, either. So, here’s
what we assume you know before you start reading:

Introduction 3
You’re generally familiar with eDiscovery and what it
entails.
You know why you might have to retain and produce
some of your documents.
You understand that e-mail, electronic documents, and
other records can be stored in a variety of locations.
Your business makes use of several different forms of
electronic communication, like computers (both desktop
and laptop), PDAs, networked storage, and other devices.

How This Book Is Organized
This book is divided into seven chapters for easy navigation.
That way, you can either read all the way through the book in
order or skip ahead to what you want to know right now.

Chapter 1: Understanding the Problem: This section
brings eDiscovery into focus for your company and
examines what any successful policy has to achieve in
order to keep your data (and your company) out of
harm’s way.
Chapter 2: Assembling a Cross-Functional Task Force:
This chapter talks about the talent you need in order to
bring eDiscovery functions in-house. You find out who
has to be involved and what services they provide.
Chapter 3: Communication: Can’t We All Just Get
Along?: Here’s where you find out why it’s important
to keep the lines of communication open. Clear and
understandable language is key to keeping the process
on-track.
Chapter 4: Taking It In or Leaving It Outside: You can’t
have everything all the time, and this section helps you
decide what functions of eDiscovery make sense to bring
inside your company. Leaving something outside your
company can be just as important and cost-effective as
doing it yourself.
Chapter 5: Selling the Vision Internally: This chapter
helps you sell the plan you want to implement to those
who make the decisions. The best plan isn’t worth
anything if you can’t convince anybody to execute it.


Chapter 6: Building an Implementation Plan: After
everything is ready, you need to establish a plan for
actually putting everything in place. This chapter helps
you set the guidelines and benchmarks toward bringing
eDiscovery into your company’s normal functions.
Chapter 7: Working with a Quality Policy: The final
section takes a look at the Six Sigma process and how
it relates to eDiscovery. You may find understanding Six
Sigma extremely helpful in charting and implementing
your company’s plan. This chapter also includes
some information on developing your own in-house
quality policy.

Icons Used in This Book
In the margins of this book, you’ll see some helpful little icons
that help flag particular types of information:

This icon flags information that you should make a definite
effort to, you guessed it, remember.

A Tip icon stands beside information that can save you time
or give you insight that will make your life a little easier.

This icon tells you that you’re reading something that could
really cause you or your company trouble.

Chapter 1

Understanding the Problem
In This Chapter
Understanding the phases of eDiscovery
Knowing where expenses come in
Grasping the scope of the information involved in eDiscovery

L ike with any business venture, you have to know the
market before you jump in and get involved. Make no
mistake — bringing eDiscovery in-house is a major undertak-
ing, should you choose to initiate the process. That’s
why you’re looking to understand the components and
challenges now.

This chapter explains the biggest parts of the eDiscovery
process and shows you what costs may be involved.
Understanding these issues can help you realize how taking
some of these steps in-house could be beneficial to you
and your company.

The Phases of eDiscovery
The flowchart shown in Figure 1-1 may look a little compli-
cated, but it boils down to three basic steps, each of which
presents its own challenges and costs.


Electronic Discovery Reference Model
www.edrm.net

Processing

Preservation

Information
Identification Review Production Presentation
Management

Collection

Analysis

Figure 1-1: The eDiscovery Flowchart.

Preservation and Collection
Preservation and collection is the process of locating poten-
tially relevant documents, quarantining them so that they are
not destroyed, and bringing them together so that they can
easily be moved to the next phase in the process. Doing this
can be tricky because several sources could contain potential
evidence.

Sources like desktop computers and servers are relatively
easy to identify, but digital information can be spread through
a host of other devices and locations that need to be consid-
ered. Not only does digital information reside in e-mail
accounts, but also in archives that can be stored either on the
computer or the server. Now factor in laptops, PDAs, smart
phones, and other electronic devices. To make matters worse,
IT organizations are required to create nightly backups of
much of this information, which means yet another copy of
each e-mail or file exists and must be dealt with.

These electronic records contain not only the primary infor-
mation but also metadata, or information about your informa-
tion. This metadata establishes when the file was created,
transmitted, modified, and sometimes gives information on
dozens of other attributes. All of this information can be vital
when pursuing an eDiscovery request, especially if the case is
a “who knew what and when” case, or any other case where
timing is important. Sometimes, a party to a lawsuit or a

Chapter 1: Understanding the Problem 7
government investigator challenges whether a piece of elec-
tronic evidence has been tampered with — it is often by show-
ing the metadata hasn’t been altered that one can establish
authenticity.

If you think of eDiscovery as a fishing expedition, the preser-
vation and collection part of the trip is where you cast a wide
net and try to get as many fish (or as much information) as
possible. From there, you have to take a look at what you’ve
caught (and throw back what you don’t need).

Processing
The problem with casting a wide net is that although it brings
everything that might be relevant into the proceedings, it also
results in a huge amount of data that needs to be sifted
through and evaluated. It also means that several copies of
the same message or file could be included in the search. If
you think of all the places where you read your mail or docu-
ments, you’ll understand where all of these copies come from.
Now factor in all of the other people reading the same mes-
sage or working on the same file. It should be obvious how big
of a mess this could be.

Processing the data involves using keywords, dates, file types,
and custodian ownership to ensure you have the smallest
subset of data possible and then converting the documents
into a format that is easily reviewed by attorneys and pro-
duced to the concerned parties.

This phase whittles down the number of potential data
sources that need to be examined and turned over. All inter-
ested parties agree to the keywords and vital statistics that
will be used in this procedure, and the results are shared in
the next step of the eDiscovery process.

Review and Production
The review and production phase carries the highest price tag,
and is the key to understanding the financial implications of
the eDiscovery process. The most important factor of this


cost is the number of documents that your outside counsel
needs to review for privilege and relevance.

The processing phase may have reduced the number of docu-
ments using electronic means, but lawyers will still need to
review the documents to make sure they’re actually applica-
ble to the request in question.

Your lawyers must be very careful in how they tag a docu-
ment. For example, if a document or e-mail contains attorney-
client privileged communication, and a lawyer inadvertently
miscodes this document and produces it, the attorney-client
privilege can be waived. Because of this, attorneys can only
review a few hundred documents a day.

Consider that 1 gigabyte of data represents perhaps 10,000
documents or e-mails, and it might take an attorney a week at
least to review those documents. If that attorney is charging
$300 per hour for eight hours a day and takes a week, that’s a
cost of almost $12,000 per gigabyte for attorneys to review
documents. Now imagine your eDiscovery case contains 200
gigabytes slated for attorney review! Now you understand
how the costs can rack up so quickly.

Now imagine that 75 percent of those documents could have
been deleted before the litigation arose if the company had
properly implemented a sound record retention policy (think
throwing back some of the unnecessary fish mentioned ear-
lier) or filtered out by an in-house eDiscovery technology
before they got to this expensive step in the process. Details
about how this phase can be handled are often the most com-
pelling impetus for bringing eDiscovery in house, and are
the easiest to demonstrate to other stakeholders in the
organization.

Chapter 2

Assembling a Cross-
Functional Task Force
In This Chapter
Choosing your team members
Getting different departments to work together
Splitting the bill effectively

B ringing a huge operation like eDiscovery in-house means
a lot more work to handle internally. The process goes
more smoothly if that work is distributed evenly and every-
body involved plays her part. By splitting up this monumental
task, eDiscovery can be accomplished more effectively with-
out putting too much strain on any one person or department.

Putting the Team Together
Depending on the size of your business, you could have
several different departments with stakes in the eDiscovery
process. Each department has its own perspective on the
problem and how to solve it. Your legal department may be
comfortable with the amount of data you have to retain,
but your IT team may be shaking their heads at the amount
of storage they’re required to maintain and the scheduled
backups they have to administer.

Typically, no group has the funding, the skills, or the knowl-
edge necessary to solve this problem on its own. That’s why
having a cross-functional task force is critical. By working
together, each department can help produce an efficient
eDiscovery effort.


Above all, this group must have executive sponsorship.
Without effective leadership and backing, this group could be
dead in the water. A good place to start is your organization’s
compliance department or officer. Your company may have a
governance risk and compliance (GRC) initiative underway.
This is often the best place to start investigating how to
obtain executive sponsorship. If your organization has not yet
kicked off such a group or initiative, the General Counsel or
CFO may be candidates for executive sponsorship.

The single largest factor in determining the eventual success
or failure of this taskforce is the team makeup — many
dynamics need to be understood in choosing the team mem-
bers. You want to select team members that can cooperate
with each other and effectively balance their departments’
needs and wants with the overall goal of the operation.

One ancillary benefit of ensuring a truly cross-functional
task force is that the team has many buckets from which to
request budget money. If a particular software application
achieves goals of two or more departments, those depart-
ments may pool their resources and split the bill. There’s
nothing like lowering costs to make executives take notice
and approve the needed actions.

Legal Meet IT, IT Meet Legal
Your legal and IT departments are probably the two most
important departments involved in this effort to create in-
house eDiscovery. Legal has the knowledge of the eDiscovery
process and what needs to be done to make all of the relevant
information available and applicable. IT has the skill and
equipment to accomplish the goals of the eDiscovery process.
Despite these complementary skills, though, it’s sometimes
hard to get these two departments to work together. Each
department has its own mindset and jargon, and each has its
own corporate culture. Sometimes, it can seem that these two
groups are diametrically opposed.

The rift between legal and IT has been narrowing recently,
though. Now that the eDiscovery process is much more preva-
lent, more source data is available for quantitative analysis of
what eDiscovery means and how much it can cost (including
the TCO, or total cost of ownership of litigation support software

Chapter 2: Assembling a Cross-Functional Task Force 11
applications). More than that, eDiscovery’s higher profile
means everybody knows about the procedure and why it’s
so important.

Another driver that brings Legal and IT together is the
common threat of a 30(b)(6) deposition. This legal rule
enables an adversary to require a corporation to answer
certain questions; the corporation must then designate
employees to answer on its behalf. In eDiscovery matters,
IT personnel are almost always needed to answer questions
about e-mail systems, backup processes, and related IT mat-
ters. Because the appointed person’s answers are binding on
the company, that person must understand the process —
and the lawyers want to understand the answers before the
deposition. Having the right person designated before any
case begins is therefore very important. Plus, under the
amended FRCP, a similar process might take place at the
“meet and confer” meeting — in the first 120 days after the
case has started!

This greater familiarity with eDiscovery bodes well for Legal/IT
relationships, because it provides a common ground with
which to tackle these issues. In fact, many large organizations
have now put together cooperative departments called Legal
IT or another similar name. These departments can really
expedite an organization’s ability to deal proactively with
eDiscovery and related objectives. A Legal IT department
creates a single reporting structure for both technologists and
legal personnel. The team’s members may come from diverse
backgrounds, but they’re all working toward a common goal.
This creates an atmosphere of teamwork and fosters problem-
solving. The group is typically led by a senior professional,
known as a Director of eDiscovery. Typically this is an individ-
ual who has gone to law school as well as having a back-
ground in technology. This person can often speak both
“languages.” (For more on communications, see Chapter 3.)

Not all companies are large enough to support such an
organizational change, and sometimes such a shift just isn’t
possible. In those instances, task forces are the next best
thing. Pulling together the right people from different depart-
ments can go far toward making your eDiscovery efforts suc-
cessful. Executive sponsorship can go a long way in fostering
teamwork and unselfishness as well. The right leader can pull
together these members and make working toward a common
goal a lot easier and more rewarding.


Records Management
Records management means a lot more than just organizing
papers into boxes and throwing them into a dusty storage bin.
Keeping track of every little piece of an organization’s vital
information is an important and necessary part of business,
and it involves many high-tech solutions. Today’s environ-
ment of regulation, compliance, and eDiscovery challenges
means that corporate record managers are more important
than ever, and they have to be involved in all levels of the
eDiscovery process.

At the beginning of the eDiscovery explosion, it became clear
that proper records management could drastically reduce
costs downstream. For example, DuPont conducted a case
study for one of its large litigations. In this one example,
DuPont reviewed approximately 75 million pages of text at a
cost of $24 million. When the case closed, the company per-
formed a post-mortem to determine which of those records
were past the date they were supposed to be deleted, per the
company’s records retention policy. DuPont found that 50 per-
cent of the records were retained in violation of its policy. In
other words, DuPont spent $12 million paying attorneys to sit
in a room and review documents for privilege when those doc-
uments could have been legally destroyed had the company’s
records retention policy been in full force. Companies usually
take notice when your study shows that a multimillion dollar
effort could be cut in half.

Most companies are frustrated when they investigate how
to apply their records retention policy to electronic records,
though. Their policies may have been written long ago, when
the volume of records paled in comparison to today. Some
records retention policies may have thousands of types of
records defined. This presents great difficulty when “teach-
ing” technology to analyze billions of records — determining
which class a record belongs to may be close to impossible.
Re-evaluating and updating these policies can be a
daunting task.

Fortunately, it’s possible to both update and simplify records
retention policies. Doing so makes it easier for technology to
process the information and humans to review the findings.
Because of this, involving a records retention specialist in the
task force is very important.

Chapter 2: Assembling a Cross-Functional Task Force 13

Human Resources
Even though human resources professionals are separate
from the Legal or IT departments, their connection to elec-
tronic records makes them an integral part of efforts to bring
eDiscovery in-house. HR departments typically find them-
selves needing to perform internal investigations stemming
from complaints of harassment or discrimination, violations
of acceptable use of company equipment policies, and other
internal matters involving electronic records. They often
need to restore e-mail and documents for many employees,
sometimes even from those who have long since left the com-
pany. They also have to examine records and search for possi-
ble violations of corporate policy. This process is not unlike
eDiscovery. In fact, when the task force eventually decides
what applications to buy for future eDiscovery collections,
HR may wish to participate and even contribute some of their
budget that is earmarked for investigatory tools.

Security
Just as their name implies, security is charged with making
sure that everything from the actual physical place of busi-
ness to all of the materials and data inside that company’s
systems are kept safe. Protecting from the loss of trade
secrets is a key initiative in most corporate security depart-
ments these days. Imagine if a top sales rep leaves a company
for a competitor and takes with him a complete pricelist
and territory plan that includes details of prospects and
customers, complete with contact information. The financial
impact is nearly incalculable.

Many security organizations are charged with performing
“surveillance” on their networks to identify instances of
inappropriate storing of such information on shared network
drives or desktops. Other security or compliance groups may
need to scan for the presence of personal health information,
Social Security numbers, or personal credit information on
any manner of electronic devices. These critical documents
need to be in a true document management system, and not
floating free on desktops and fileshares.


Crawling fileshares for data and analyzing and quarantining
files based on content is extremely similar to preservation
in eDiscovery. Often, the tools that enable the security and
eDiscovery personnel to do their jobs are exactly the same. A
company can purchase the necessary tools and allow multiple
departments to make use of them — sharing costs, expertise,
and maybe even personnel. This is another prime opportunity
for budget-pooling and collaboration.

Lines of Business
It didn’t take long for organizations to figure out how to
“charge back” eDiscovery costs to the lines of business that
own the underlying problems. For example, a product liability
case stemming from the poor engineering of a product is
relatively easy to correlate with a certain product line within
a company. That department might then be held responsible
for the additional eDiscovery costs.

There are a few ways to work the costs of eDiscovery into
business operations:

Some organizations simply pay for litigation costs
out of their reserves
Some file claims with insurance agencies
Some charge back the costs to the responsible
department(s)

If the corporation is going to adopt this approach, then it
is critical that the lines of business be represented on the
taskforce as they likely will need to make prevention versus
treatment decisions based on return on investment (ROI)
analysis. In other words, the departments can offer advice
on the best way to manage costs involved in eDiscovery and
plan for eventual problems in the future. It’s better to plan
for these matters now than to get hit down the road.

Chapter 3

Communication: Can’t We
All Just Get Along?
In This Chapter
Eliminating roadblocks to communication
Understanding different departments and jobs
Standardizing the terminology used in the eDiscovery process

E ach type of business has an accepted vocabulary, a
collection of terms familiar to those in the business. This
vocabulary may not make sense to the outside world, but it
helps those people in that business communicate quickly and
effectively. Even departments within that business develop
their own verbal and written shorthand (ask your techie
friends about an id10t code and see what they say). Bringing
eDiscovery in-house means getting departments to put aside
their own forms of communication and connect with each
other effectively. Proper communication is the foundation to
acting cross functionally. This chapter discusses several ways
to increase the effectiveness of cross-border communications.

Skipping the Slang, Junking the
Jargon, Axing the Acronyms
Nothing turns a listener off more quickly than when a speaker
uses hard-to-understand language. Imagine a conversation
between a lawyer and an IT professional:


Lawyer: Can you capture personal e-mails from our
employees if those messages are sent from a company
computer?
IT professional: The application layer monitors SMTP
traffic, but it cannot monitor HTTP traffic.
Lawyer: You confuse and frighten me.

Even a noted master of obscure terminology like a lawyer has
a hard time with this IT talk. You can see that little is being
communicated. But what if the IT pro tries another response:

Lawyer: Can you capture personal e-mails from our
employees if those messages are sent from a company
computer?
IT professional: We can capture e-mails if they are
sent from a program on the computer, such as Outlook
Express or Eudora. If they are sent using a Web-based
e-mail system like Hotmail or Gmail, then we probably
can’t get it. However, we can block our employees from
using this type of e-mail account.
Lawyer: Thank you. Let’s institute this policy
and obtain lunch.

This is real progress being made.

Similarly, an IT professional’s eyes may glaze over if a lawyer
says “Zubulake states we need to keep all data to avoid
spoliation, even if we are going to make a 26(b) ‘not reason-
ably accessible’ argument.” This is an unacceptable level of
legal jargon.

The lawyer will gain more friends by instead saying “Judges
have fined other companies who didn’t preserve their backup
tapes. We may never need to touch them, but we need to keep
them.” In this case, the team is off to the right start.

The overall message here is that all team members involved
in the eDiscovery process need to translate their normal busi-
ness language into terms that the average layman can under-
stand. If all team members make a conscious effort to explain
and clarify their points of view, the process will move more
quickly and all the bases will be covered.

Chapter 3: Communication: Can’t We All Just Get Along? 17

Spend Some Quality
Time Together
Relationships are important for the eDiscovery task force, just
as in any other group. Each team member needs to trust the
other team members and be assured the others aren’t being
territorial or selfish. The team must have regular meetings
and plan strategies in advance, as opposed to only gathering
when a crisis hits and damage needs to be controlled.

These meetings should offer everyone a chance to brief the
team as to new developments in their areas, both internally as
well as in the marketplace at large. Because it’s important for
everybody to tend to their normal job responsibilities, you
may have to look for time outside the normal work day to
hold these gatherings. Consider happy hours and retreats as
informal venues that tend to foster personal relationships.

The digital age also makes other avenues available for infor-
mation sharing. The eDiscovery task force can use its own
newsletter, electronic messageboards, or virtual meeting
spaces to further its goals. This allows team members to learn
at their own pace or at long distances from others, if need be.

Legal Can Learn IT’s Lingo
Even with team members working on simplifying their termi-
nology, there’s no substitute for knowledge. Taking the time to
educate the team about other departments and their respon-
sibilities can go a long way in managing the implementation of
new policies.

In addition to learning about the basic tasks and responsibili-
ties of the IT department, the legal team members can also
improve their understanding of the processes the IT depart-
ment uses in its normal daily activities. Several reputable
vendors can conduct workshops at your company’s site that
enable this kind of education.

eDiscovery is both a legal problem and a business process
problem. Six Sigma is a very popular business process


improvement methodology embraced by most large organiza-
tions and held in high regard in most IT organizations (for
more on Six Sigma, see Chapter 7). Learning this content at a
high level can help the legal team express itself in terms more
easily understood by IT professionals.

Take, for example, a conversation between a lawyer and an
IT professional regarding a misunderstanding on records
retention times. Stating to that IT professional that “We need
to have a serious meeting about making sure this never hap-
pens again” is likely to elicit a negative or defensive response,
causing problems between team members and maybe hinder-
ing the implementation of needed policies. If the lawyer tries
a different take on the situations and says “This process
is a good candidate for a Kaizen,” he will probably elicit a
cooperative response.

Even if the IT department doesn’t follow the Six Sigma
process, it can still be helpful to the lawyers to talk with them
about their business process and understand what goes into
making decisions and implementing their policies. That kind
of understanding can be quite beneficial to all involved.

Both printed and digital materials can be helpful in providing
definitions for technical terms. Plenty of resources exist,
ranging from technical Web sites to the more ubiquitous
Wikipedia that can be helpful in clarifying terminology. Making
frequent use of these resources can be helpful in making
communication easier.

IT Can Learn Legal’s Lingo
Turnabout is fair play, after all. Having the IT department
learn some basic legal terminology and concepts will go a
long way toward making communication easier. IT folk may
know which drives and tapes need to be retained, but know-
ing why they have to be held for so long can be helpful.

The first step is learning some of the basics of eDiscovery.
Again, this is where print and digital resources can be of
great value. A great place to start is The Sedona Conference.
The Sedona Conference is a world-renowned organization
dedicated to providing guidance on issues related to

Chapter 3: Communication: Can’t We All Just Get Along? 19
eDiscovery. Many illuminating whitepapers can be down-
loaded for free from their Web site at www.thesedona
conference.org.

For a small fee, a glossary can be downloaded that contains
virtually all the eDiscovery and even technical terms com-
monly used in the process. It is an excellent idea for organiza-
tions to purchase this glossary and use it to standardize their
terminology, which will help workers avoid misunderstand-
ings. Not only does this help eliminate jargon, but it gives
everybody a common set of terms to use in implementing
eDiscovery.

It may be helpful for the legal department to put together a
small presentation on the specific legal issues involved with
eDiscovery and how they apply to the company at large.
Localizing the eDiscovery process to their specific situation
can help them understand the process easily.

Chapter 4

Taking It In or Leaving
It Outside
In This Chapter
Understanding the eDiscovery phases
Evaluating the benefits and drawbacks to bringing these phases
in-house
Making the best decision for your company in terms of cost and
integrity

A s discussed in Chapter 1, eDiscovery can be broken
down into different phases. Your company may have the
resources to bring all of those phases in-house, or you may
have to pick and choose what your team has the time and
resources to handle on its own. You can choose to bring in
all decision-making and physical hosting and handling, or
you can leave the latter phases to a vendor, consultant, or
law firm and oversee what happens to the data. You can bring
eDiscovery in-house in many ways, and each phase has its
own specific considerations that you must keep in mind
when deciding.

Making Up Your Mind about
Preservation and Collection
Preservation and collection is the phase of eDiscovery most
frequently brought in-house. Because this process involves
identifying, locating, collecting, and preserving data that’s
already under the control of the IT organization, it’s an
obvious candidate.


For example, certain IT personnel access data from e-mail
servers almost every day. Having them retrieve some data
from those archives is much less costly than having outside
consultants or technicians come in and do it. It can be terribly
expensive and disruptive to bring in outside consultants if
there’s a large store of data like a RAID (redundant array of
inexpensive disks) setup. It can also be a problem if the
data must then be delivered to another location for further
processing (which defeats the internalization of any further
eDiscovery processes).

However, outside consultants may be ideal in several
circumstances, such as those outlined in this list:

If the data involved is on a large number of personal
computers and not on any centrally located electronic
devices
If the consultant’s office location helps you to avoid
further charges, like travel fees
If your targets are not at your company’s headquarters
If the nature of the case is so sensitive that having a
neutral or quasi-neutral third party may help show
a court how seriously you’ve taken the matter

More than likely, you will find it to be more efficient to bring
the data hosting and collection in-house for this phase. You’ll
have to evaluate your own costs and needs, of course, but
your data and records are already in your possession. It’s just
a matter of making sure they’re stored and filed correctly.
Keep in mind that a careful eye should be kept on the preser-
vation phase, because it’s an activity you get only one chance
to get right. Once a record is lost or deleted, it’s gone. There
are no do-overs.

This is further complicated by the fact that a large organiza-
tion may have dozens of outside counsel and hundreds or
thousands of holds to manage. Many have found great relief in
the eDiscovery realm by consolidating the list of preferred
outside counsel, and utilizing state-of-the-art software applica-
tions to manage all the litigation holds. These two steps can
drastically decrease the amount of errors or omissions in the
preservation and collection phases of eDiscovery.

Chapter 4: Taking It In or Leaving It Outside 23

Deciding What to Do
with Processing
Processing is another phase of eDiscovery ideal for bringing
in-house. It’s a relatively low-risk proposition, because this
phase typically uses working copies of data instead of the
actual data itself. If there were an error or other problem
with the working copies, the data could theoretically be
reprocessed. As long as proper care is taken to preserve meta-
data, or information about the data (like time and date created
or modified and the users who accessed the file), the copies
should work in the processing phase.

The infrastructure and applications necessary to bring this
phase in-house aren’t prohibitively expensive, whereas ven-
dors often have fairly expensive fees per-gigabyte in this area.
Tasks like de-duplication (where duplicate records from sev-
eral different sources are condensed to decrease the amount
of data that needs to be reviewed by lawyers), keyword
searching, and load file preparation (files used to bring data
into several common programs) can now be done in-house for
pennies on the dollar. This is a phase where both the decision-
making process and the actual data handling should definitely
be brought in-house. You retain control of the process and
save a great deal of money at the same time.

Large volumes of data may require the attention of outside
vendors, because such organizations could be the only ones
with the resources to handle those mass quantities of infor-
mation. Courts aren’t likely to look favorably on delays in
their proceeding because you can’t dig through your records
in time. Also, if the case is so sensitive that it will require
someone to testify as to the steps taken to avoid data loss,
it may be advisable to rely on outside experts.

Making the Decision on
Review and Production
Three aspects to the review and production phase require
analysis and attention. This section discusses all three.


The review process
Many companies have been burned by outside counsel (who
weren’t savvy in eDiscovery) demanding that the review be
conducted in a costly manner. For example, some companies
may have paid millions of dollars to make TIFF images (or
even print out reams) of junk e-mails. Others may have had to
repeat their document review because co-counsel didn’t share
a common review platform (a program or service that contains
the data in question and allows it to be examined), or they
weren’t able to give access to each other. As you can imagine,
the time needed to re-review the data doesn’t come cheaply.

These problems explain why it is critical that the review
process be designed internally, and that the decisions regard-
ing review tools and methodology be made in-house. There is
little risk here, other than the dangers of choosing a review
platform that slows down the reviewers, doesn’t utilize cutting-
edge technology like native file reviews, or that lacks the abil-
ity to review the files and their metadata in their original state
as opposed to copies made on different media, like paper
copies.

Hosting data in the review tool
Hosting and reviewing data could potentially be very expen-
sive if not brought in-house. When loaded into the review tool,
your information might carry with it an initial cost of $1,000
per gigabyte for loading and processing, and another $150 per
gigabyte per month to sit in the review tool’s repository. This
cost is incurred even if your information isn’t being touched.
Pricewise, it makes sense to look at bringing this process into
your organization.

However, doing so isn’t the easiest thing in the world. It’s criti-
cal that the IT department can support the application both
inside your company and out, because parties outside of your
organization will use it. It’s imperative that the application is
secure, as you’ll need to manage access to the data. Outside
counsel may need to see the information, but nobody else
should be able to see your sensitive data.

Next, the infrastructure must be able to support a high
“uptime” percentage. Speaking plainly, that means that those

Chapter 4: Taking It In or Leaving It Outside 25
using the platform have to be able to get access whenever and
wherever needed.

Disaster recovery and business continuity must be consid-
ered as well. Can the IT department guarantee that, in case of
fire, flood, power surges, or other problems, the data will be
available? Will they still be able to support their normal tasks
at the same time, or will additional help be necessary? Also,
who will handle support for users who need help at 3 a.m.
(which often happens with large document reviews)?

If all of these questions can be answered to your (and your
budget’s) satisfaction, then licensing review tools internally
and hosting the data yourself will save a great deal of money.
It will also allow for repeatable business processes and
increase collaboration between inside counsel, outside
counsel, and co-counsel.

The actual review of documents
Your legal department isn’t likely to have enough lawyers
to review documents in large eDiscovery cases. Aside from
expanding the number of lawyers in your department, you
can’t do much to change this situation.

However, owning the review process itself can certainly help.
For example, if a corporation has “contract reviewers” hired,
your law firm can use them at a lower cost than any associ-
ates that might be employed by outside counsel. Contracting
those reviewers ahead of time allows you to maintain a firmer
grasp on review costs. Also, having preferred tools and
vendor lists that your outside counsel must abide by can
be extremely helpful in several ways. You can:

Standardize on a tool, ensuring data can be reused.
Optimize your buying power by consolidating all of your
projects with one vendor — with pre-negotiated pricing.
Choose tools that best lend themselves to your data. For
example if you have a lot of CAD drawings, a tool with a
native file emulator may save your outside counsel from
having to TIFF everything or buy expensive CAD licenses


While owning the process used to review documents is advan-
tageous, it is probably not a good idea to actually conduct
the review of documents (determining which documents are
privileged and responsive). Outside counsel will need to make
representations to the court about assertions of privilege and
so forth, so it might be best leave to leave this to them. You
may consider mandating your outside counsel to use contract
reviewers if this is an option.

Chapter 5

Selling the Vision Internally
In This Chapter
Using real-life examples to show the seriousness of eDiscovery
Illustrating the savings of bringing eDiscovery in-house

A fter you have a plan in place to bring eDiscovery phases
inside your company’s operations, you probably have
to sell somebody else on that plan to get it done. Unless, of
course, you own your business, in which case we commend
you for your foresight. If that’s not the situation, this chapter
offers some strategic options for you.

Using Scare Tactics
Unfortunately, many employees throughout large organiza-
tions don’t understand how serious issues like eDiscovery
and records retention really are. Thus, they may wish to put
these projects a little farther down on the priority list. It’s
your job to push them a little higher, and that may involve
scaring a few folks.

There’s nothing like a good cautionary tale to make corporate
executives realize that they don’t want to be like the last
company to fall into problems. Letting your higher-ups know
about these mistakes and missteps can go a long way in fur-
thering your cause. You don’t have to look far for examples
you can use.

Think of maintaining a business justification document that
bolsters your case, circulating a regular newsletter, or a “hall
of shame” exhibit of eDiscovery or compliance snafus. Make
sure it circulates widely through the organization, especially


among the executives you’re targeting. Make sure to keep
your organization up to speed on the pitfalls in this arena so
leaders can make informed decisions regarding prioritization,
sponsorship, funding, and the proper focus on eDiscovery
issues.

You may also want to take the time to tailor some of your doc-
uments to specific departments. Electronic storage stories
may be more effective for the IT department, whereas exam-
ples of outrageous costs or prolonged legal issues may be
more in tune for legal and executive personnel. Know your
audience, and you’ll get better results.

Pooling Resources: ROI
Return on investment, or ROI, is a business planning tool that
aids in decision support. Essentially, two alternatives are
considered in a decision-making instance:

The status quo
Investing in an alternative product or service

A product might require a $20 investment, but that investment
will save $40 in other costs that were previously unavoidable.
The ROI in this case is compelling and the product should be
purchased. A little money up front can save more money
down the road.

Point out that bringing certain phases of eDiscovery inside
the business will equal savings down the road. In today’s
business climate, eDiscovery costs are unavoidable.

Suppose that IT could implement a new procedure, using a
program purchased by the company, that more effectively
retained e-mail records and de-duplicated messages, making it
easier to review and produce eDiscovery information. That
software purchase and extra IT labor may cost a little bit more
initially, but it will reduce the potential costs of hiring addi-
tional associates or lawyers down the road. If that program
could effectively reduce e-mail volume by 50 percent, the ROI
can be calculated by determining the cost savings in attorney
review fees for that data.

Chapter 5: Selling the Vision Internally 29
It also means you won’t have to hire an outside vendor to
manage the process for you.

Another factor to consider in your ROI calculations is time.
How long will it take to obtain this return on investment? If
the software package produces the savings over 20 years, it
might be less compelling than an alternative that delivers
savings over the span of a few months. You’ll have to balance
not only the money returned, but also the time it takes to get
that return.

Chapter 6

Building an Implementation
Plan
In This Chapter
Getting your plan together
Selling your plan to the executives
Evaluating and changing the plan down the road

A ny way you put it, eDiscovery can be a difficult issue to
understand. It is critical that this very complex subject
be expressed in a way so that executives (likely the ultimate
decision makers for large investments) can quickly and
easily understand the cost-versus-benefit analysis. You should
also be ready to show how and when the plan will be imple-
mented and how you will be involved. Finally, you want to
be able to demonstrate how this plan can be reviewed and
changed as need be down the road.

Starting from Square One
Before you can present the plan, you have to actually get the
plan together. Remember, this plan should include:

An outline of the benefits achieved by implementing
the plan
The personnel involved
The new programs or services needed
The timeline for the implementation
The goals involved in that implementation
The final cost of the program


Make sure that you’ve got all of the elements of your plan
together, and include any contingencies that may occur.
Planning ahead at this stage means you’ve avoided a lot of
problems down the road.

Project Management
Other than the makeup of the team, the next most important
factor in ensuring the success of this project is solid project
management. This project will have many moving parts, and
it will require input from many concerned parties. Given the
importance of eDiscovery, be aware that you’re handling a
high-stakes project.

Consider involving a certified PMP Project Manager from your
IT organization. This person will be familiar with the use of
Gantt charts, Visio workflow documents, and other tools that
will keep the team and the executives updated as to the status
of the project. This person has the abilities necessary to
maintain oversight over the project and keep everything on
track. Think of her as the trail boss for your cattle drive.

Establishing a Timeline
When you’re making a change of this magnitude, you need to
be able to keep things on track. You also need to let every-
body know how long this change will take so that reasonable
expectations can be met and the team members can see the
light at the end of the tunnel.

Make sure you establish how much time you’re going to need,
and build in a little additional time for the inevitable overages
and pitfalls that come along in life. It’ll be great if you’re
finished ahead of schedule, but you don’t want to be caught
unprepared. Remember, that’s part of what you’re trying to
avoid with this plan in the first place.

Chapter 6: Building an Implementation Plan 33

Setting Milestones for Your Plan
You may know the end result that you want your plan to
achieve, but you also need to know what steps along the
way make that result possible, and in what order those steps
need to happen. Milestones will help you recognize what’s
going on with your plan at a certain time, and what still
needs to be done to keep things on track.

For example, suppose your overall goal is to bring data
collection and review in-house. You’ll want to know when
these steps will occur:

Funds are available for purchase of new software
and hardware.
Team members are chosen and in place for your
taskforce.
IT staff is trained on new equipment.
Legal has reviewed and signed off on the plan.
Software and hardware are installed and functional.
System has been tested and approved by IT.
Data is ready for recovery and use by all interested
parties.

Establish a date for each milestone, and you’ll be able to keep
your plan on track (or see when it’s behind schedule and act
to get everything going again).

Paying for Your Plan
Part of ROI (return on investment) is making sure the initial
investment gets made. Your plan should include a complete
cost breakdown, including software, hardware, salaries,
consulting fees, and any other expense that might be included


in implementing your plan (your Starbucks habit should not
be included here). Make sure your budget includes some
headroom for expenses that will arise if you have to deal with
unscheduled problems.

Training the Staff
Both your taskforce and any other personnel involved will
be taking on new tasks and responsibilities. Make sure they
have the tools and training they need to execute any new
duties that result from your plan. Remember — eDiscovery
is a new and rapidly changing field for most employees,
especially if they’ve never had to worry about it before. By
making training available, you’re preparing your company
for a smooth transition.

Before visions of costly classrooms fill your head, remember
that the same digital technology that makes eDiscovery
more manageable also makes educating your employees
about it easier and more cost-effective. Research the available
resources online and look at distance learning and in-house
training sessions that keep your employees on-site and
learning.

Review and Evaluation
After the plan is underway, you’ll want to hold regular meetings
and receive status reports on how the implementation is going.
This is where having a project manager is especially important.
That person will be able to keep her focus on the plan and
maintain oversight over the entire scope of the project.

Based on your milestones and goals, you’ll be able to see
what’s going on and what needs to be changed. Keep the
focus on the overall goal and make the changes necessary
to implement your final plan.

Chapter 7

Working with a
Quality Policy
In This Chapter
Looking at Six Sigma
Examining in-house quality policies

A quality policy isn’t a policy that’s “real good.” A quality
policy is an organization-wide policy that dictates how
your organization will plan, manage, and then control quality
in all projects. This policy sets the expectations for your
projects, and everyone else’s, for metrics of acceptability.

Quality policies fall under the big umbrella of quality assur-
ance (QA). QA is an organization-wide program, the goal of
which is to improve quality and to prevent mistakes. Those
goals integrate well with the goals of eDiscovery, where
quality assurance is more important than ever, so it’s a
natural fit that these two programs coincide.

The quality policy can be written by the geniuses within
your organization, or your organization may follow a quality
system and the proven quality approaches within these
systems. Either way, you’ll have a framework in place to help
you implement the changes you need in your business,
whether they relate to eDiscovery or not.

Slipping into the Sixth Sigma
Unless you’ve been living in a cave the past few years, you’ve
no doubt heard of Six Sigma. Six Sigma is a procedure that
strives to reduce waste and errors, and constantly improve


quality through the services and deliverables an organization
produces.

People trust the trial-and-error process. They try something,
learn from their mistakes, and move on from there. Six Sigma,
however, focuses on preventing the mistakes from entering
the process in the first place; this is quality assurance. Prevent-
ing problems is critical in eDiscovery, because once a mistake
happens, it might be too late!

The Six Sigma program was invented by the smart folks at
Motorola during the 1980s. Their creation paid off with an
increase in profits, customer satisfaction, and quality awards.
Their program went on to be adapted as a standard for
quality assurance by the American Society of Quality (ASQ).
Visit ASQ at www.asq.org. Motorola also received the
Malcolm Baldrige National Quality Award in 1988 for their
Six Sigma methodology.

Figure 7-1 shows the range of possibilities for sigma. According
to ASQ, most organizations perform at three to four sigma,
where they drop anywhere between 20 and 30 percent of their
revenue due to a lack of quality. If a company can perform at
Six Sigma, it only allows 3.4 defects per million opportunities —
which might mean per million documents reviewed.

The primary points of Six Sigma are

We don’t know what we don’t know. Makes sense,
right? A lack of knowledge keeps organizations trapped
in their current environment, losing revenue, and
preventing progress.
We don’t do what we don’t know. If you don’t know
what you should be doing you can’t do it.
We won’t know until we measure. Aha! The real action
in Six Sigma is to measure in order to improve.
We don’t measure what we don’t value. Six Sigma looks
at what does and does not need to be measured, and
then prompts the developer or project manager to act
accordingly. If you value your programmers’ time, your
software’s errors, and your customer satisfaction, you’ll
measure them all.
We don’t value what we don’t measure. This is a call to
action! What should you be measuring that you’re not?

Chapter 7: Working with a Quality Policy 37
One Sigma from Mean

Mean
Relative frequency

Six Sigma from Mean

-3 -2 -1 0 1 2 3

Sigma from Mean
Figure 7-1: Organizations operating at the Sixth Sigma allow only 3.4
defects per million.

Using Homegrown, In-House
Quality Solutions
You don’t have to follow any prepackaged approach to quality
in order to create quality. Your organization may have its
own internal quality program that you and your project team
must follow. And that’s just fine.

Sometimes in-house programs are more fluid than the rigid
programs from outside organizations. The danger, of course, is
that a fluid approach may also be seen as a passive approach.
The project manager must commit to the in-house quality
policy and demand that the project team do the same.

Any and all in-house solutions should have the following
attributes:

A written document that details the organization’s
quality management approach. Verbal policies don’t
count.


A defined system to identify quality, and identified
procedures for performing a quality audit. A quality
audit proves that a project has followed the quality
policy.
Metrics and procedures on how to perform quality
control (QC). QC is inspection driven, and the proce-
dures may vary among disciplines within an organization.
A boilerplate quality management plan that all projects
use to guide project planning, execution, and comple-
tion. The quality management plan sets the rules of how
a project should perform and defines the expectations
of the project manager to achieve the expected quality.
Procedures on how to update, change, or challenge
the quality management plan. This is an important
component because there will likely be circumstances
that require the quality plan to flex, change, or evolve.
If the quality management plan doesn’t define this
procedure, then you may fall victim to the old adage:
The reason we’re doing it this way is because we’ve
always done it this way.

When information comes together,
your infrastructure is litigation-ready.

Before a subpoena hits, build efﬁcient, proactive, and repeatable business processes for
eDiscovery and practical records and information management. With EMC® technology
and solutions, you’ll move your organization to secure, enterprise-class, policy-based
information management, de-duplication, forensically sound search, collection and
preservation, and assured deletion. The result: Costs and risk go down, responsiveness
goes up.

Visit www.EMC.com/ediscovery for a practical approach to addressing eDiscovery
challenges.

Re-examine
eDiscovery

Focus on bringing eDiscovery in-house with an EMC
workshop or assessment.

EMC® Information Policy Management Workshops and the EMC Assessment for Reten-
tion and eDiscovery strategically position your organization to meet your legal obliga-
tions. We apply experience, expertise, and best practices from countless engagements
to your speciﬁc needs so you can be conﬁdent you’re focused on the right solutions.

For more information, visit www.EMC.com/ediscovery.

Analyze the needs
of your business

Understand the
eDiscovery phases
Decide what pieces Calculate the savings
of the process to and costs of bringing
eDiscovery in-house
bring in-house
Grasp the scope
This book helps you analyze the issues surrounding of the information
in-house eDiscovery, so that you can determine what involved in eDiscovery
is right for your organization. You’ll see what processes
can effectively be brought into your operation, and what Choose your team
challenges you’ll face in implementing those changes. members
You need to understand as much as you can before you
start making decisions! Get different
departments to
work together and
eliminate roadblocks
to communication

ain English
Explanations in pl
” formation
“Get in, get out in
Find listings of all our books
vigational aids
Icons and other na Choose from many
Top ten lists different subject categories
and fun
A dash of humor Sign up for eTips at
etips.dummies.com

ISBN: 978-0-470-34439-2
Book not for resale

Bringing eDiscovery In-House Guide

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