A Supply Manager’s Introduction to e-Discovery

Although I’ve blogged about how procurement can help marketing in The Creative Challenge (I and II) by way of a bit of Magic & Logic (I and II), I’ve yet to tackle the subject of e-Discovery, even though David Bush has a great 3-part series on e-Discovery last year (I, II, and III) over on e-Sourcing Forum.

However, a recent article over on SIG by Ted Ardelean of Oce’ Business Services, which was the first part of a three part series reminded me that this is an important topic and one that Sourcing Innovation needs to cover because, when bids for a given project can often range by as much as a factor of 10, this is one cost that a business really needs to get under control and one area where you have to understand the needs of legal in order for them to accept your help, which they obviously are in desperate need of in many companies.

So what is e-discovery? As per Wikipedia, “e-discovery”, refers to discovery in civil litigation which deals with information in electronic form. And as per e-Sourcing Forum, in recent years, the everyday use of e-mail and other forms of electronically stored information (“ESI”) has radically changed the discovery process, materially increasing its scope, complexity, and expense which has resulted in e-Discovery muschrooming into a multi-billion dollar a year industry. It’s important because amendments to the Federal Rules of Civil Procedure (FRCP), effective 12/01/06, move the adversarial discussion of E-Discovery right up to the preliminary stages of these cases. One emerging byproduct of this clarity from the Courts is the potential for E-Discovery costs to almost immediately dwarf the cost of whatever it is that is in dispute. Needless to say, this is quite troubling for corporate legal departments which can potentially have thousands of these cases going on at any point in time as per a Fulbright Survery.

And it’s not an easy process, especially if you want to be involved (and you do want to be involved, because it represents a huge saving opportunity, and gives you a chance to be an even bigger savings superstar than you already are), but if you follow the basic rules (laid out on e-Sourcing forum) and follow a good process, it is a manageable process. The basic rules are:

  1. You must be as non-disruptive as possible to Legal’s deliberative process and you must demonstrate complete and utter discretion.
  2. You need to understand how the e-Discovery market works.
  3. You need to know what questions you need to ask of Legal.
  4. You need to know how to communicate with the principals of Legal in a way that is meaningful to them.

In addition, as pointed out in Ted Ardelean’s article, you should also:

  • familiarize yourself with the FRCP
  • familiarize yourself with the EDRM (Electronic Discovery Reference Model) that standardizes the process of exchanging ESI in a manner that reduces associated costs
  • start a dialog with your in-house council early, and communicate often

And you should review the case study detailed by David Bush in parts II and III of his series. It contains a basic process that you can use as a starting point for building the in-house process that’s right for you.