Five Reasons Why Organizations May Be (Or Should Be) Bringing More Discovery In-House

Written by Doug Austin, Editor of eDiscovery Today

It’s a little early to be making Christmas analogies.  Then again, the stores already have their Christmas decorations out and Black Friday sales are already here in many online retailers, so maybe not.  Regardless, one of my favorite Christmas specials (yes, I still watch the ones I grew up with as a kid) is A Charlie Brown Christmas for a variety of reasons: the music by the Vince Guaraldi trio, the “true” meaning of Christmas, how adorable Snoopy is, etc.  And, of course, there are several cute scenes throughout the show.  One scene happens when Linus is given his script during the first rehearsal for the Christmas play and he remarks towards Lucy that he “can’t memorize something like this so quickly” and asks for “one reason” as to why he should be put through such agony by memorizing the lines.  Lucy walks up to him and says “I’ll give you five good reasons” and proceeds to count from one to five as she closes her fingers, one-by-one, up into a fist.  Linus quickly responds that “those are good reasons!”.

The way 2020 has gone, perhaps Lucy was about 55 years before her time? Just kidding…

Regardless of Lucy’s persuasion skills, I will give you five reasons why organizations today may be (or maybe should be) bringing more discovery in-house. And I’ll do it in a kindler, gentler fashion than the way Lucy might do it.

Reason #1: Technology is Moving More to the Data

Did you see my blog post from last week?  If you missed it, I’ll give you a brief recap and a link to it here for more information.  The enormous growth of big data combined with tightening timeframes for discovery have forced organizations more and more to push discovery processes earlier in the EDRM lifecycle. In 2025, the digital universe of data will grow from 0.1 zettabytes in 2005 to around 163 zettabytes, or over 163 trillion gigabytes – over 1,630 times the amount of data that existed when the EDRM model was created.  Yet, you may have as few as 70 days to understand your data well enough to be ready for the Rule 26(f) meet and confer.  Big Data combined with shortened time frames generates a need to move technology to the data to filter and cull that data in place – moving much less of it forward.  And that need only continues to strengthen.

Reason #2: Budgets are as Constrained As They’ve Ever Been

Every quarter, Rob Robinson’s Complex Discovery blog issues an eDiscovery Business Confidence Survey, which surveys eDiscovery professionals about their confidence in the business of eDiscovery.  One of the questions Rob asks every quarter is which factor (out of six choices) they feel will most impact the business of eDiscovery over the next six months.  In the Summer survey conducted back in July (which I covered here), the top factor was Budgetary Constraints, which was selected by a majority (56%) of the respondents as being most impactful over the next six months, more than the other five factors combined.  Certainly, organizations are more constrained by budgetary concerns since the pandemic began, which means that many are bringing more discovery work in house to save costs.

Reason #3: Litigation is On the Rise

If the New York Times says it, then it must be true, right?  More litigation means more to manage, not just from collection to production, but in terms of preservation and legal holds.  Organizations have no choice but to take a more active role in managing those processes because many more of them have multiple holds to manage.  Retention and destruction policies need to be interwoven into the management of legal holds more than ever, so that organizations can keep track of when data can be defensibly deleted.  In-house legal is one of the five stakeholder groups of the Information Governance Reference Model (IGRM) and is critical to the effort of linking the two.

Reason #4: Compliance Needs Are Growing

Because of the changing data privacy landscape with new regulations like Europe’s General Data Protection Regulation (GDPR), California’s Consumer Privacy Act (CCPA) and other data privacy legislation, organizations have many more compliance requirements than ever before.  Data Subject Access Requests (DSARs) are a recent phenomenon that didn’t even exist several years ago, and organizations are having to address discovery for those using in-house resources.

Reason #5: Desire to Maintain More Control

With greater demands from a data and time frame standpoint, more litigation, more compliance requirements and tighter budgets, what would you do?  And I didn’t even mention growing cybersecurity concerns since the pandemic as the workforce remains largely remote (here is just one stat that illustrates that issue).  When times get tough, many organizations tend to retrench and try to maintain more control.  Even to the extent that organizations are outsourcing services, they’re probably scrutinizing that spend a lot more closely.  One way they’re doing that is getting more involved in managing the technology being used by outside counsel and service providers, whether that technology is cloud-based or on-premise.

Hopefully, my reasons were more compelling – and less threatening – than Lucy’s reasons to Linus for memorizing his script!

For more educational topics from Doug Austin related to eDiscovery, cybersecurity and data privacy, follow, eDiscovery Today! And as part of the continued educational partnership between IPRO and eDiscovery Today, he’ll be here in the IPRO Resources next week with more educational content!