E-Discovery: The Importance of Process and Assessing Relative Risks
We read with interest of the recent inadvertent public exposure of confidential information in a public filing (GE Suffers a Redaction Disaster, The Connecticut Law Tribune, May 28, 2008). This case illustrates two important more general points about risk: focusing on process and assessing risk on a relative rather than absolute basis.
Plaintiffs in a pending sex discrimination case against General Electric filed papers digitally in PDF format. Plaintiffs believed they had redacted the PDF files but savvy computer users were easily able to “see under” the apparent blacked out text. Several prior widely publicized stories like this means the profession should already have been on notice.
Lawyers worry, as they should, about this and other risks. As they consider risk, we think they must focus more on risk relative to what. Comments in the legal trade press suggest that outsourcing creates risk. This case illustrates that mistakes – in this event, a costly one – can and do occur even when services are performed by law firms or in-house legal departments. This is not to point the finger but rather drive home the point that there is no risk-free path.
Minimizing risk is not just about being careful; it’s about having rigorous processes. That means a tested, proven, documented, and repeatable process, complete with extensive quality checking. The critics of legal process outsourcing might be surprised to learn just how process-focused Integreon and other reputable legal process outsourcers (LPO) are. Any good LPO devotes significant effort to hiring practices, training, deploying technology consistently, and applying statistical controls.
Establishing a rigorous process to reduce risk also means minimizing the number of points of failure. More hands and more hand-offs increase the likelihood of error. Especially in e-discovery, which is inherently complex and prone to errors like the one in this suit, clients should seek unified control. Integreon has, for example, recently created a single point of contact and responsibility for managing e-discovery. We believe that the market will rapidly move in this direction, driven not only by the more favorable economics, but also by the risk reduction achieved in reducing the number of hands involved.
Risk may be unavoidable, but a realistic assessment of alternatives and implementation of rigorous processes helps minimize it.
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