As corporate mandates to reduce risk, control costs, and generally “do more with less,” are changing the way in-house teams work. For many legal departments, especially those facing routine, high-velocity litigation, taking greater control of the discovery process often presents one of the greatest opportunities—and some of the most significant initial return on investment. In-housing document collection or data reduction efforts like deduplication can dramatically reduce the costs associated with discovery and investigation, for example. (Learn more on how to calculate ROI for in-house legal teams here.)
Interestingly, the barriers of the past no longer present much of an obstacle. Perceived risk, lack of budget, and lack of expertise or technology aren’t standing in the way of in-housing more legal work, according to the initial results of Logikcull’s 2020 In-Housing Survey. (Stay tuned for the full release of the survey results, plus more trends and insights it identifies, in the near future.)
When it comes to discovery and investigations, where does your in-house legal team rank? Logikcull’s new In-Housing Index provides criteria for assessing internal systems, technology and capabilities; benchmarking against other organizations; and taking cost-effective steps to minimize risk and third-party dependencies. Download your copy here.
When it comes to bringing more work in-house, some organizations are just starting to take those initial steps. Others are far ahead of the field. Logikcull’s new In-Housing Index helps you see where your legal team—or your clients’—stands, breaking in-house approaches down into four broad levels:
Each level is evaluated based on personnel, capabilities, internal expertise. Each category is evaluated according to likely costs, risks, and, finally, next steps that can be taken to increase the effectiveness of your process.
Level 1 “dependent” in-house teams, for example, are those that may not routinely face disputes and investigations, such as those with fewer than 1000 employees, that are privately held or that are not in regulated industries. When litigation or records requests arise, legal and IT personnel collaborate on an ad hoc basis to identify and collect responsive documents. Organizations that are especially risk-averse may hire a forensics vendor or law firm to perform the collection on-site. From here, the organization almost always enlists an outside vendor and/or law firm to handle the full spectrum of search, review and production responsibilities.
Here, both risks and costs are high. Since the very nature of these organizations’ litigation profile is unpredictable, their approaches often are highly ad-hoc and dependent on third parties. That in turn leads to costs that are hard to predict and hard to control.
Further, because there are so many parties involved, risks to sensitive data increase. Sharing data in bulk with outside law firms prompts the “where is my data?” question, while the inability to cull data prior to engagement with third parties often results in unnecessary sharing of sensitive information such as trade secrets, confidential and privileged information, and PII.
For such teams, the initial returns for creating a more consistent, controlled approach to discovery and investigations can be significant. Relatively simple strategies (and we emphasize relatively here) like identifying common sources of data, documenting legal hold procedures, and implementing a hub technology for the collection can go a long way to reducing the costs, risks, and general uncertainty of a discovery process.
Compare dependent organizations to level 3 “autonomous” legal departments on the index. These may not be on the absolute bleeding edge legal in-housing, but they are far more advanced than many in-house law departments.
Autonomous organizations have clearly-defined and documented discovery processes and roles. These companies tend to be either frequent litigants or highly regulated (or both), and, in addition to having operating guidelines in place for outside counsel and external vendors, also use internal tools to perform targeted collections and early case assessment prior to involving outside firms. They generally leverage automation tools to streamline the legal hold process and may also handle “litigation-adjacent” tasks such as third-party subpoena response and employee investigations.
In addition, the organization is both aware of and capable of addressing atypical data sources should data responsive to disputes reside there.
As a result, costs are contained due to aggressive data targeting and culling before documents are shared with outside counsel or third-party vendors. Streamlined processes further drive costs down by bringing greater efficiency, consistency, and repeatability to discovery.
As these organizations’ independence increases, the risks they face decline in tandem. For example, a clear, mature process breads greater internal expertise. That, in turn, results in greater familiarity with company data sources, allowing sensitive data to be identified quickly. Centralizing the discovery process in a single repository means that strict access controls and monitoring can be accomplished, reducing the likelihood of improper distribution or inadvertent disclosure.
Of course, organizations at this level can still improve. Establishing guidelines for outside counsel and vendors, training outside partners on process and technology, and improving ECA approaches are all steps that can help move organizations from autonomy to leadership.
How does your approach compare to these? When it comes to discovery in-housing, are you leading the crowd or just getting started?