Editor: What are the key technologies that general counsel should be considering today to improve the performance of their law departments?
Kiker: There are a number of technologies available today that can help improve the performance of the law departments as they try to manage legal cost and risk. Electronic billing and matter management are mainstays of corporate law departments, and these technologies are maturing nicely. Legal hold management technologies are also becoming more sophisticated and reliable. More recent innovations include early evidence assessment tools that help companies identify, preserve, collect and conduct initial analysis of potentially relevant electronically stored information (ESI) and hosted review and analysis technologies that provide many of the same features, but without the internal infrastructure and management costs. It's important to understand that technology is an enabler, and business process is the foundation. Before investing in technology, general counsel should ensure that the business processes to be enabled are well-defined and executable. It may be appropriate to conduct an assessment of current business practices to identify the greatest opportunities for improvement, so that the technology dollars can be allocated to their greatest effect.
Gaines: The two key technologies are eDiscovery Analytics and Legal Hold Process management. In today's environment, producing unnecessary and irrelevant information is costly and could be detrimental to the outcome of litigation, and also takes away from the merits of the case. We know that legal hold, or litigation hold, is the process by which an organization prevents the destruction of information that may be relevant to a lawsuit, audit or regulatory investigation. The risks of failure to provide electronically stored information for a legal hold may include losing information that might support your case, sanctions for spoliation including fines and adverse instructions, and criminal penalties under Sarbanes-Oxley. An organizations' best defense is to be able to demonstrate that it has acted in good faith and followed a consistent and rigorous legal hold process. Using these technologies, the corporate legal department will be able to improve efficiency, consistency, and defensibility.
Editor: Are there legal support technologies that are best utilized on an in-house basis, while others should be accessed through legal services providers?
Kiker: The answer to this question depends on a number of factors, including the size of the organization, its litigation profile and its cultural preference for in-house solutions versus outsourced solutions. For most corporations, the identification, preservation and collection of ESI is most effectively conducted internally, from both cost and management perspectives. Most companies find that processing, review and production of ESI is best managed by outside providers. More companies, however, are implementing some level of processing capability, particularly for early evidence assessment, either through enterprise or hosted (SaaS) software solutions. SaaS solutions are becoming increasingly popular, because they eliminate the need for infrastructure, maintenance and personnel costs associated with the purchase of software and hardware. In determining which activities to perform (and technologies to implement), counsel should consider the following questions:
• How effective is your current business process (in-house and outsourced)?
• What activities incur the greatest cost and risk to the organization?
• What is your litigation profile, including internal investigation and regulatory response demands?
• Do you have the IT and legal support staff required to perform the activities in question?
• What is the culture within your organization with respect to owned versus outsourced solutions?
• What technologies are currently in use today, and are they being fully leveraged?
• How well do the technologies being considered support existing or desired workflows?
• Have you leveraged relationships with your technology and service providers to identify cost and risk reduction opportunities?
Gaines: We believe that self-sufficiency for corporate counsel utilizing e-Discovery analytics and Legal Hold Process Management on an in-house basis is necessary for the "law firm of the future," one in which corporate counsel will utilize this technology to reduce costs, reduce their risk, and increase their revenue stream.
Published December 1, 2009.
