Ten Key Differences Between eDiscovery and Information Governance

10

Why are eDiscovery & Information Governance often discussed together?

Lots of surface-level similarities

• Large document populations• Elements of managing risk• Some overlap in processing

tasks and solution providers

But also lots of important differences

• Primary & Secondary Objectives

• Notions of Time• Available Tools• Ultimate Users

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Quick definitions

eDiscovery is..Any process in which electronic data is sought, located, secured, and searched with the intent of using it as evidence in a civil or criminal legal case. - TechTarget

The process of identifying, locating, preserving, collecting, preparing, reviewing, and producing Electronically Stored Information (ESI) in the context of the legal process. - Sedona Conference Glossary

Information Governance is..The activities and technologies that organizations employ to maximize the value of their information while minimizing associated risks and costs. – Information Governance Initiative (IGI)

The set of multi-disciplinary structures, policies, procedures, processes and controls implemented to manage information at an enterprise level, supporting an organization's immediate and future regulatory, legal, risk, environmental and operational requirements. - Wikipedia

Key Difference #1: Primary Objective

eDiscovery’s Primary Goal is..To reduce (cull) the data population down to the minimum possible set to review, and ultimately, to produce.

Secondary Goals• Cost reduction• Protect security

FILTER

CULL

REMOVE

IG’s Primary Goal is..To organize the data population for a variety of uses, now and in the future, (possibly including for litigation and eDiscovery).

Secondary Goals• Business insight• Control of information• Risk reduction

Key Difference #2: Timeframe

2004-2005

2006-2007

2008-2009

2010-2011

2012-2013

2014-2015

eDiscovery’s timeframe is fixed, by the claims of the case. There is a set start and end to the document data.

2004-2005

2006-2007

2008-2009

2010-2011

2012-2013

2014-2015

IG’s timeframe is open-ended, by design. There is a set start to the document data, but an open end that is meant to be ongoing.

Key Difference #3: Processing Timeline

In eDiscoveryDecisions & Implementation are: ASAP, chaotic

Actual Processing Duration is: usually measured in days/weeks/months

Processing Approach is: bulk, batchEx: per GB, or per custodian

Typically speak in terms of total volume of project (# GBs, # Custodians)

In IGDecisions & Implementation are: slow, methodical, organized

BackFile Processing is: usually measured in days/weeks/months

Ongoing Processing is: usually measured in minutes/hours

Processing Approach: per unit or retainer/all-inEx: per document/file, or per month

Typically speak in terms of required rates of project (docs/day, search response rate, problem resolution times)

Key Difference #4: Available Tools

eDiscovery Tools are oriented around Processing Tasks• De-NIST• De-Dupe• Filter by Keyword, Date, Custodian• Host• Produce

eDiscovery Tools are off-the-shelf, branded products• Slim differentiation• Minimal flexibility or customization• Low cost• Proven

IG Tools are oriented around Scenario Outcomes• Files re-labeled & relocated• Control of information• Protection of sensitive info (PII, PHI)• Business/scenario projections• Repeatable workflow

IG Tools are heavily customized solutions and platforms• High differentiation• Heavy flexibility and customization• High cost• Still in pilot stages

Focus on: What does it do? Focus on: What does it yield?

Key Difference #5: Solution Provider Relationship

Typical eDiscovery provider’s role is.. Data mechanic

Competition is on.. Price• Repetitiveness & experience• Same tools everywhere• Price model is one-off

Surprising players.. • Clients themselves• Facilities Management• Staffing Agencies

Typical IG’s provider’s role is..Strategic Advisor

Competition is on.. Technical capability• Flexibility of solution• Trust & experience• Different tools everywhere• Price model is retainer

Surprising players.. • Consultancies• Law Firms

Key Difference #6: Starting Data &Document Organization

• Intake vs. collection– eDiscovery undertakes a sophisticated and detailed effort of

carefully executed collections, often involving custodian interviews, data maps and targeted, forensic collections

– IG typically utilizes a batch collection/migration approach for existing data (Backfile)

– IG also creates an ongoing Intake system for new documents or files as they are created/submitted/decommissioned, etc. Intake typically includes:• ESI: Email transmission (w/ attachments)• ESI: Drag & Drop web-based submission• Paper: Fax, Mail and in-person

START

Key Difference #6: Starting Data &Document Organization

• Live Documents vs. Copies– eDiscovery uses forensic (or

scanned) copies of files, rather than the actual “active” files.• Copied files are used in a

separate, litigation-specific database for off-line, non-active usage

– IG typically utilizes “live” documents, in the systems in which the documents typically reside and are actively used• Sophisticated

requirements for version control and check-in/-out

• Organized by Custodian (Source) or by Topic (Classification)– eDiscovery organizes files by

their source, or custodian• Documents are rarely moved

from one source to another and are specifically not renamed or altered in any way.

– IG organizes files by their contents, or key topics• Documents are frequently

moved from one area to another and are intentionally renamed, removed, restricted or altered as required.

START

Key Difference #7: Ending Data &Document Organization

• Same as Outset or Changed from Original?– eDiscovery does NOT change

the original files• Simply stored temporarily in

a litigation database– IG DOES change the original

files

• Dispose of or keep?– At matter end, the eDiscovery

database is deleted.– IG keeps documents in a

document management system, indefinitely.

FINISH

eDiscovery uses the “Nike” strategy:

IG uses the “Ford” strategy:

Key Difference #8: Users

Who Uses eDiscovery Systems?• Outside Counsel• Inside Counsel

These are NOT the same people who created the original documents.

Users are working with a copy of original data. Document decisions made typically do not travel back to the source documents or to their creators.

Institutional knowledge about documents and business practice is scarce (and once-removed).

Focus is on.. relevance

Who Uses IG Systems?• Business Units• Outside Counsel• Inside Counsel

These ARE the same people who created the original documents.

Users are working with original, native documents. Document decisions DO typically travel back to (or are simply made onto) the source documents.

Institutional knowledge about documents and business practice is plentiful.

Focus is on.. classification

Key Difference #9: Error Tolerance

eDiscovery’s Error Tolerance is..Very low. Mistakes can cause cost overruns, loss of privilege, mistrials, or even sanctions. Usually fix at any cost.

Protections in place• Multiple sets of “eyes” for Quality

Control• Clawback agreements• Professional liability insurance

IG’s Error Tolerance is..Fairly high. Mistakes are expected and typically do not cause much damage. Usually left alone or addressed next processing round/upgrade.

Protections in place• Automated Quality Control, with

minimal manual effort• Iterative processing, with machine

learning algorithms

Key Difference #10: Budgetary Concerns

• Who Pays?– Client– Losing party

• With what funds?– Litigation budget

• ROI minimally important– And hard to measure

• Who Pays?– Business Unit

• With What Funds?– IT budget– Savings in process,

workflow and headcount• ROI very important

– Multi-year payback acceptable and common

Do NOT exceed budget cap!

Budget is subordinate to case outcome.

IGeDiscovery

Helpful Reference Card for 10 Differences

Between eDiscovery & Info Gov

(IG)

Are you more eDiscovery or more IG?

• What’s in your hand?– Hardrive or White board marker?

• What was your last gig?– Tech Support or Senior Software

Architect? • Which unit of measure?

– GB or documents?• Which is worse?

– Deleting a file you shouldn’t have or keeping a file you shouldn’t have?

• What’s cooler?– Predictive Coding or

AutoRedaction?• How many women are in the

room?– Less than half or more than half?

• What’s your reaction to this slide?– “Not relevant.” or “Did you use

analytics to generate these questions?”

Mostly A (left-side) answers? You are an eDiscovery practitioner!Mostly B (right-side) answers? You are an IG professional!

Thank You!

For More Information:

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