Epiq Systems, which provides managed technology services worldwide for lawyers and their clients, has commissioned a report about eDiscovery readiness at companies in the US, France, Germany and the UK.  It is important, every so often, to get some metrics behind the anecdotal suggestions that many companies have not given this subject the attention it deserves.

Why does it deserve attention? Litigation is but one of the reasons why companies need to access and produce data and documents in a hurry. Increasingly, the pressure  comes from regulators and, more specifically, from the  fear that a regulator may appear at any moment and demand information. Reports last year from both the US and the UK suggested that many companies do not know even what they are spending annually on reacting to eDiscovery demands one of one kind or another.

The report commissioned by Epiq looks at various sectors and at different sizes of company within each sector. The results, inevitably, vary from jurisdiction to jurisdiction and from sector to sector, presumably reflecting the perceived risk.

Greg Wildisen, international managing director of Epiq Systems, is quoted as saying:

Companies must establish a clear map of which information management systems and communication tools are being used within the business and by whom. They need to understand the means by which they can organise that information to enable efficient search and review. When it comes to responding to an investigative request, the more prepared a company is, the more efficient the eDiscovery process will be and the easier it will be to manage costs.

This echoes something said by HHJ Simon Brown QC in the UK case Earles v Barclays Bank. That judgment concerns only the specific requirements of UK civil procedure, but the message is of wider application. Judge Brown said:

The abundance of this ESI in cyberspace means that potential litigants, in particular organisations such as Banks at the current time, need to anticipate having to give disclosure of specifically relevant electronic documentation and should have the means of doing so efficiently and effectively.

Another example from UK rules and practice which has wider application is the Electronic Documents Quetionnaire which forms part of the 2010 eDisclosure Pracice Direction 31B. Its purpose, amongst other things, is to provide the “clear map of which information management systems and communication tools are being used within the business and by whom” to which Greg Wildisen refers, valuable as much to inform a company’s own strategy as to share information with opponents and the court. It would serve as a strating-point for the kind of check-list which might be helpful to companies in any jurisdiction who need to upgrade their eDiscovery readiness.

The report, called When the Regulator Calls, is available from Epiq’s website here.