The Million Dollar Words of eDiscovery

By Kevin Woo Law Technology News  December 15, 2009

Throughout history, humans have had miscommunications and misunderstandings. Some are comical like Abbott and Costello’s “Who’s On First?”; others can be tragic like “Romeo and Juliet.” Most of the time, a misunderstood word here or there doesn’t have far-reaching implications, but in the legal profession a misunderstood word or instruction can cost millions.

In today’s litigious environment, attorneys and IT professionals frequently find themselves in the midst of an e-discovery project that requires the team to quickly find information, which can reside on computers and smartphones, within applications such as e-mail, or on backup tapes stored in the closet of someone’s home. Put these challenges together and the stage is set for expensive, complex, and sometimes frustrating, e-discovery projects.

THE BILLION-DOLLAR MARKET

E-discovery is among the fastest growing segments in the IT industry. Spending for EDD software and services will reach an estimated $1 billion by year-end according to Gartner. A survey of medium-sized U.S. companies conducted by Kroll Ontrack found that, on average, companies will spend $1.29 million to manage electronic data in 2009 compared with $437,000 last year.

To try and manage time and expenses, Brian Babineau, senior consulting analyst for the Enterprise Strategy Group, says that a growing proportion of annual e-discovery spending is spent proactively, rather than waiting for litigation to drive investment. “We believe that organizations are bringing a portion of the electronic discovery process in-house, especially in the early steps such as identification, collection and initial analysis that indicates a move to a more proactive approach. The rationalization for this assumption is that organizations are recognizing electronic discovery is a formal business process and are using technology to automate it.”

David J. Kessler, an attorney with Drinker Biddle & Reath, says there are two primary reasons why e-discovery projects can end up being more complex and expensive than they need to be. The first reason, he said, is that legal and IT don’t share a common language when describing what they need to accomplish, and waste time and resources as a result. Secondly, legal and IT don’t measure success in the same way.

Kessler says that when attorneys ask for information related to specific clients they’re usually looking for e-mails, documents, loose files or information on computer hard drives. Because IT frequently doesn’t understand why certain information is being requested, they won’t necessarily think to volunteer the fact that additional client information might also reside on an administrative assistant’s computer, a home computer, within metadata, or on a computer that might have been wiped clean. “It comes down to both sides assuming what the other is thinking even though they haven’t confirmed it,” Kessler added.

The other major difference between IT and legal is the way the respective groups measure success. Attorneys are charged with managing risk and minimizing potential damage to their client or organization. IT, on the other hand, measures success by keeping computer networks up and running and having the ability to find information quickly. Need to find a lost file or have your e-mail inbox rebuilt? A good IT department will respond quickly. “IT is about sheer performance and making sure that no one is complaining about system performance,” continued Kessler. “IT wants to hold onto data, but lawyers don’t want to collect too much. They want to limit the scope of information.”

For attorneys the ability to save and find lots of data isn’t necessarily a good thing because, on balance, information does more harm than good (think smoking guns).

INCREASING COMPLEXITY

Coupled with the polarized job descriptions is the complexity of keeping track of and managing the multiple places and platforms where information can reside. Corporate networks, databases; laptops; home computers that are used to access company networks; cell phones; BlackBerrys; iPhones; digital voicemail; web-based collaboration tools and social network accounts all house information that may need to be preserved. Add hardware and software technology upgrades and the challenge multiplies.

So what should organizations do to improve the working relationship between IT and legal? Brandon D’Agostino, a former attorney with Blue Cross Blue Shield of South Carolina and now with Clearwell Systems, says there are four major steps that IT and legal organizations can take to create an e-discovery readiness plan. The first is to establish cross-functional working groups so IT and legal can develop an understanding of what the other group does, what they need, and how they can work together proactively instead of reactively. Cross-functional groups should include representatives from IT, records management, legal, and outside counsel so the players can get to know each other and outline roles and responsibilities.

The cross-functional teams should document workflow; establish document retention policies; create protocols for how text messaging, instant messaging, and other online tools can be used; and implement policies that manage the creation and distribution of digital voice records. Documenting these procedures ahead of time can help ensure that a company is ready if it needs to quickly implement an e-discovery initiative.

“The more a lawyer can appreciate what IT does and the more IT can understand what lawyers need, their [respective] roles can become more cohesive. [In the past] IT wasn’t a first point of contact but now the IT department is at the top of the list to make sure all the important data is preserved and [retrieved] as efficiently as possible,” said Dan Gelb, an attorney with Gelb & Gelb. Second, cross-functional teams should document what, how and why information is preserved or deleted so the decision making process for data retention can be easily understood by others who may become involved in the case. The documentation will also help organizations withstand data storage and archiving process challenges.

D’Agostino’s third recommendation is to have legal share past deposition questions with IT so it has a better understanding of the process. “Legal should help IT understand what the requesting party
can ask in a deposition,” he said.

The last recommendation is for organizations to adopt a common language so that words such as “delete” and “image” have the same meaning. For example, when an attorney wants ‘image files’ related to a specific case, he might mean CAD drawings, photos, or illustrations. But to the IT professional, “images” include snapshots or backups of servers and applications. Even seemingly simple words like “delete” have different meanings for IT and legal. The Sedona Conference
publishes a list of commonly used terms and phrases that can be adopted by organizations to establish a common language.

For those unfamiliar with e-discovery initiatives, the process can be daunting. But technology enables attorneys to have a better understanding of case facts. This insight helps attorneys decide whether or not to settle or go forward with litigation, and more importantly, allocate the appropriate resources to complete the project. By using technology, attorneys can rapidly gather knowledge so they can make more informed decisions, but the information needs to be accessible quickly and accurately before it is of any business value.

Babineau advises against waiting until the last minute to implement an e-discovery program. “No organization, large or small, is immune from electronic discovery. So for most, it is not a matter of ‘if’ it is ‘when’ [litigation will happen]. In most situations, a company will not make investments in technology until they go through a matter that is financially burdensome. What we are seeing is legal and IT going through one or two expensive electronic discovery search processes before they realize there is a better way. In the past, it may have taken a year’s worth of [painful EDD initiatives] before someone realized that internal processes had to be improved with technology.”

Kevin Woo is a freelance journalist based in San Francisco, California.