The C-Level’s role in purchasing eDiscovery solutions impacts corporate success more than you might think.
The C-Level’s role in purchasing eDiscovery solutions is commonly overlooked or undervalued. When it comes to purchasing corporate eDiscovery services, if your title begins with a “C”, you should know the facts, risks, and implications of the company’s eDiscovery strategy, resources and solutions.
Needless to say, every business has different needs, and eDiscovery needs vary greatly depending on each company’s situation. Whether you’re preparing for the possibility of future litigation, investigating possible wrongdoing inside your company, or simply complying with regulatory requests, there’s a decent chance you’ll require specialized technology and services. As a C-Level, you should understand how those decisions (and eDiscovery itself) affect you and your business unit.
However, before you buy a piece of software or hire a professional to take over your eDiscovery, you should understand the problems you want to solve. It’s rare for any one person at your company to have all the necessary knowledge to make this call on their own. Ideally, the C-level leader should develop a group consensus before making a major decision about legal technology, but doing so should not delay the overall process or add additional layers of corporate bureaucracy.
We recently encountered fallout from a client making the classic mistake of purchasing eDiscovery solutions without gathering input from others at the company who could have vetted the available options and provided valuable insight. This corporate leader opted for a software product that was completely wrong for the company’s needs, causing massive disruption for IT and other departments impacted by that decision and wasting a huge amount of money in the process.
C-level leaders can save their companies millions of dollars — not to mention avoid a great deal of unnecessary stress — by actively collaborating in the searching, vetting, choosing, purchasing, and implementing of an enterprise-level eDiscovery solution and related eDiscovery services provider. We’ll be devoting subsequent blogs to the specific role each leader can play, but first, let’s take a wide view of how an effective corporate eDiscovery solution selection process should work.
Step 1. Create an eDiscovery steering committee.
Your corporate eDiscovery solutions team should include a cross-section of company C-level leaders, as well as the heads of the legal department, Information Technology, and IT Security. Depending on your type of organization, that can include your:
- Chief Technology Officer (CTO)
- Chief Information Officer (CIO)
- Chief Information Security Officer (CISO)
- General Counsel
- Associate General Counsel
- Any delegates of the GC or AGC
- Others in the company who may be impacted by eDiscovery activities
By inviting these people to the table, you are designating to each of them partial responsibility for the success of your company’s decision and motivating them to contribute in a meaningful way.
If your team is unable to meet face-to-face, you can still take a committee approach through regularly scheduled video chats. Encourage each party to contribute insights, request specific features and voice any concerns. Then facilitate a consensus around the decisions that you make, so that at the end of the day, even the people who don’t get their first choice understand the logic behind the decision-making process.
Step 2. Define your organization’s eDiscovery goals.
Purchasing eDiscovery solutions that best meet your company’s needs will be much easier if you first familiarize yourself with the eDiscovery process itself. There’s no better place to start than the electronic discovery reference model (EDRM), which outlines the nine distinct stages of the eDiscovery process. After deciding which elements of the EDRM are most relevant to your company’s situation, determine what you can manage internally with your current capabilities in-place versus what might need to be outsourced. The answer will be different for each company.
Naturally, there are pros and cons to every path. For instance, a company might be able to reduce its legal spend by assigning in-house teams to some parts of the process, such as litigation holds and data preservation. However, an external vendor can bring distinct advantages, such as a higher level of legal expertise and a deep understanding of the nuances and capabilities of eDiscovery technology. Many external vendors also employ stringent data security measures to ensure that clients’ sensitive information is protected from threats both external (malicious actors) and internal (inadvertent spoliation due to IT migrations or normal user data deletion activities).
Step 3. Get ground-level input from company stakeholders.
To your corporate committee working toward a decision about purchasing eDiscovery solutions, the perspectives of employees who will be using the software or directly interfacing with the eDiscovery services vendor are indispensable. These employees, more than anyone else at your business, can define the tools necessary to accomplish your company’s eDiscovery goals and help clarify how the options on the table stack up. Most likely, they will bring up important points that might otherwise be missed. For your best chance at honest, unfiltered feedback in these communications, try to avoid leading questions, and be prepared for the conversation to take an unexpected turn or two.
Step 4. Before purchasing eDiscovery solutions, explore your options in detail.
The best way to determine whether an eDiscovery solution is right for you is to dig in and do your research. It is one thing to hear a sales presentation or watch a promotional video. It’s another thing entirely to experience the process from start to finish and come away with a true understanding of how the solution would work—if the solution would work—in reality at your company.
We recommend that you ask all eDiscovery vendors in the running to do a proof-of-concept (POC) by running a mock case, or even a small-scale real case. Put any new technology and services standard-operating-procedures through each vendor’s paces before you commit. Before making a final decision, learn as much as you can about the functions and workflow of individual eDiscovery solutions, and pay attention to how the providing vendor reacts to situations.
Step 5. Determine which department will have direct oversight of your internal eDiscovery team.
For any department in a large company to do effective work, a clear chain of command is a must. Your internal team purchasing eDiscovery solutions is no exception. Whenever our clients have internal eDiscovery teams who answer both to Legal and IT, their situations invariably lead to a power struggle between the two departments. Turns out, you cannot serve two masters in eDiscovery, either.
Each company has a unique internal structure and landscape. Generally, the older a company is, the longer they’ve had established norms in-place, and the less flexible they are. Where possible, we suggest situating your internal eDiscovery team inside or closely tied to the legal department, with an additional liaison to the IT team. If you are building a team from scratch, it’s important to include people with a legal or forensics background. At the very least, your team members should understand the requirements for successfully getting through a legal matter.
Step 6. After purchasing an eDiscovery solution, have a respected C-level team member champion the integration process.
The success of any corporate eDiscovery solution depends on a broad-based adoption across your company. Individual employees will need to be made aware of and comply with company policies regarding their email accounts as well as company and personal devices.
If you don’t have a C-Level or other executive sponsor leading your company’s efforts in purchasing eDiscovery solutions, then you’ll struggle to get buy-in from your employees. Once you’ve decided on your corporate eDiscovery playbook, have a visible C-level leader (someone who’s well-liked and well-heard by employees) send an email explaining the decision and urging each employee to get on board. Employees will take their obligations much more seriously if the message comes from a C-level leader as opposed to a General Counsel.
Dear C-Level Leaders:
Choosing a corporate eDiscovery solution is a major decision and should not be done in a vacuum, even if that vacuum consists of competent IT personnel whom you know and trust. As an effective leader, equip yourself with an understanding of both the problem and the possible solutions. Choose a course of action that is based on research and the active involvement of other stakeholders across your company. Ultimately, your decision and your company will be the better for it.
Since 2002, BIA has been advising companies of all sizes on how to implement eDiscovery solutions. We know the roads well-taken and those less so. We already know the snags you will encounter and how to get you untangled from them, so reach out today. The C-Level’s Role in purchasing eDiscovery solutions is paramount at our company; how about at yours?