The Real Cost of Bringing Ediscovery In-House: Implementation

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[This is Part 3 of a 5-part blog series. Read Part 1 here and Part 2 here.]

You work in a corporate legal or IT department that’s feeling the pressure to cut costs and improve efficiency. You’ve looked at your budget and identified ediscovery outsourcing as a major area of expense, so you went through the lengthy process of researching, negotiating, and finally acquiring an in-house ediscovery software. After all of the time and budget spent purchasing the software, you assume your work is done and everyone will just start using it, right? If only!

You’ve jumped over one hurdle only to end up at even bigger one. Now, you have to actually roll out the system to your organization and make sure it doesn’t turn into the dreaded “shelf-ware” – that is, software that’s purchased and never used. In this post, we’ll dive into the additional costs and effort associated with the next phase of bringing ediscovery in-house – implementation.

Data Migration
One of the first steps in implementing any new software is moving your data from the old system to the new system. Data migration is risky for any industry, but ediscovery data migration is particularly high-stakes since lost or mishandled data can have serious legal and financial implications. Migrating data from one ediscovery system to another can be a major headache, regardless of how many documents need to be migrated, and leaves a lot of room for error.

Corporations – especially in highly-regulated and highly-litigated industries – often have regulatory and industry-specific duties to preserve as much information as possible from one system to another, but lack the technical expertise to do so defensibly. You might be able to map some standard metadata from one system to another, but if you had any unique metadata or customizations – especially if you were using custom fields to store important information (review notes, for example) – you’ll need to figure out how to map those fields into your new system without losing critical data. Your new software might require a different organizational structure for your documents and associated metadata, so you’ll need to consider how to reorganize your data to easily fit into the new structure.

Both kCura and Exterro offer excellent advice on how to plan for an ediscovery data migration, but at the end of the day, it’s a complex and risky process that comes with a laundry list of technical and compliance questions to be answered before you can even start. Data migration is often such a daunting task for corporations that it either falls to the bottom of the IT department’s priority list or outside consultants or software experts are needed to organize and assist in the process. Can your company afford to bring on an additional staff member or consulting team just to get data into a new ediscovery platform? On the other hand, can you afford the sanctions or lawsuits that might arise if any data is lost in translation?

Training & Building a Process
Once you have the software and all of your data is migrated and ready to go, you now have to get people to use it – and lawyers are notoriously slow to adopt technology. In a recent interview with alt.legal, in-house legal consultant Casey Flaherty said legal technology can’t be the main agent for change without bigger institutional change and training. “Legal technology is good, and it’s gotten better,” according to Flaherty, “But tech, while it might be easy to use, it’s not automatic. Lawyers expect it to be automatic.” Even the most intuitive ediscovery software is going to require training, and Flaherty cites a study from MIT estimating that for every dollar spent on new technology, an organization should plan for ten dollars spent on training.

If you look at the cost of training programs and classes for some of the more robust ediscovery platforms, you could be spending thousands of dollars per person to get the necessary users and admins up to speed on how to get the most out of the new tool – and that doesn’t account for the loss of time spent on department work to attend training, study, get certified, etc. You also have to consider that being trained on new software is likely to be the last item on an IT staff member’s to-do list, so it might be months or even years before all necessary parties are properly trained.

Ediscovery is a veritable minefield of legal and regulatory protocols dictating how data should make its way from company servers to production. Bringing ediscovery in-house means that your organization is now solely responsible for understanding how to navigate that minefield, and so a crucial part of training is developing a process and workflows that take into account your software’s capabilities and your organizational needs. These workflows need to meet performance metrics and keep costs low, and you need both software expertise and legal expertise to develop a defensible and repeatable process, so factor in time for at least two resources to collaborate on process-building – or consider hiring a consultant to help you in developing best practices.

Legacy Systems
Because data migration and training are such a daunting, time-intensive tasks, we’ve seen many organizations choose a phased approach to implementing a new ediscovery platform, wherein they keep existing cases on the legacy system – whether in-house or through their service provider – and roll out any new cases using the new system. At one particular large organization we worked with, this phased approach was still in progress over two years after purchasing Relativity! While this is a much more manageable process because it reduces the amount of data to migrate and setup before the new system can be used, organizations that choose this more manageable approach will come up against a huge hidden cost in that they’re paying for two ediscovery systems. And if they’re working with a service provider, they’re still paying for hosting, managed review services, etc. through the provider, as well as all of the costs associated with an in-house ediscovery system.

CONCLUSION
For corporations looking to cut legal spend, the price tag for implementation can be daunting, but what’s the alternative? Not spending the time and money on ensuring data is transferred and set up properly in the new system, training all relevant staff on the new ediscovery platform, and developing processes and workflows that maximize efficiency – will guarantee that the software will either be misused or – perhaps even worse – become “shelf-ware,” meaning you’ve spent time and money acquiring a software that you can’t get anyone at your organization to use. All the upfront costs associated with the acquisition process get flushed down the toilet, and with them, goes any chance you have at proving positive ROI to company stakeholders.


After implementation, the next cost you’ll need to consider when bringing ediscovery in-house is around maintaining it, so stay tuned for the next post in the series, where we’ll dig into how the hidden costs associated with maintenance – from updating software to replacing hardware – will impact the total cost of ownership for ediscovery software.