Four best practices to optimize eDiscovery

Managing the complex and time-sensitive legal processes of an organization requires strategy, expertise and the right technology. Federal agencies are frequently subject to legal matters, investigations and Freedom of Information Act (FOIA) requests, all of which require quick and accurate access to records.

Electronic discovery (eDiscovery) is the broad term for the technology that enables this access to be less time-consuming and resource-intensive. With a well-designed and managed eDiscovery program, an agency can efficiently and accurately search, preserve and provide information in electronically stored information (ESI), including federal records.

In a recent two-part blog, Laurence Hart explained the records management mandates from the Office of Management and Budget (OMB), and the National Archives and Records Administration (NARA). Upcoming deadlines to comply with the OMB and NARA Memorandum M-23-07, which direct agencies to complete their transition to electronic records, along with growing eDiscovery demands, are changing the records management landscape. The mandate is bringing together records managers, legal officials and IT leaders in a transition towards a broader information governance strategy that integrates records management with eDiscovery and FOIA processes.

Meeting legal requirements and fulfilling FOIA requests requires the ability to find all ESI quickly and accurately to create a complete response. So, eDiscovery requires solid record-keeping, including the ability to efficiently and cost-effectively find responsive information (including documents, email and social media), apply retention rules and legal holds, and integrate with litigation support applications.

These evolving needs demand a records management framework that goes beyond traditional records management—to include eDiscovery, privacy, FOIA and information security. As agencies continue to move information to cloud environments, newer tools built upon artificial intelligence (AI) and machine learning (ML) provide opportunity for automation, efficiencies and insights not previously available.

Best practices for eDiscovery

Agency records managers and legal leaders must work hand-in-hand to design and develop efficient solutions that address overlapping records management and eDiscovery needs. Best practices include:

• Define and gain consensus on the agency’s requirements for records management, eDiscovery and FOIA support – including input from eDiscovery, FOIA and records management stakeholders.
• Identify gaps between the requirements and agency’s current technology, and determine whether adapting current systems is enough to address those gaps, or if the agency needs new technology.
• Evaluate proven technology to provide efficiencies including auto-categorization, automation, enterprise search and digitization. Also, consider emerging technologies including predictive analytics, AI and ML algorithms to optimize the entire eDiscovery and FOIA lifecycle.
• Analyze viable alternatives and make recommendations on the best solution to meet the agency’s needs.

As agencies define their records management system requirements, they must consider the capture, storage, retention and search of non-record information that have traditionally been excluded from records repositories. Records retention policies must be revisited to include retention periods for non-record, discoverable information, simplified email retention schedules, and social media.

Getting a handle on decentralized records

Implementing agency-wide records management and eDiscovery within environments in which electronic records (including email, social media and office documents) reside in various disconnected and incompatible systems, is a difficult undertaking.

Agencies must evaluate whether a centralized enterprise records repository is feasible and desirable, or whether the agency can apply its information governance and retention policies in a consistent manner across multiple repositories. Often, a centralized or federated records management strategy is necessary to enable efficient eDiscovery of record and non-record material, which today are stored in information silos. AI and ML tools can help efficiently discover records and place them under control where they reside.

Current practices, which involve searching disparate systems individually, have proven to be time-consuming for the agency’s workforce, and often result in legal defeat or incomplete FOIA requests due to the inability to produce responsive records.

As agencies prepare to address the information lifecycle of hundreds of millions of records, they must evaluate technologies that automate records processes, particularly the capture, organization and categorization of records.

Keeping up with tech

Finally, the agency’s legal team, along with its records managers and FOIA officers, must continuously respond to the accelerated pace of technology, including collaboration, social media, AI and cloud-based solutions that challenge traditional records management policies and processes.

For example, courts have ruled that ESI stored on mobile devices is subject to Litigation Holds. Records may be created in the cloud, approved on a mobile device, revised in a SharePoint site and shared on a social media site. AI, combined with eDiscovery and FOIA, is benefiting agencies through improved search accuracy, reduced labor needs and costs, and faster results.

An effective eDiscovery and FOIA approach must focus on the capture, retention and security requirements for the various states of these records throughout their information lifecycle—from cradle to grave.

For more on records management, visit our federal enterprise content and records management page.