eDiscovery – Making Life Easier For Legal & IT Departments
Jeff Labhaun – Waterford Technologies
Years ago, when we started discussing the disconnect between IT and legal departments, people were surprised that I had the audacity to even bring it up. At trade shows and in client account conversations I would simply ask what level of cohesion there was between the two groups as an informal polling. The typical answer was, “Everything is great; we never talk to each other.” So, that means there’s no disconnect then? It’s like a friend of mine told me about fighting with his wife, “The less we talk, the less we fight”. Sure, sounds like a good plan buddy.
8 years ago this was when eDiscovery was in its infancy and many folks on the legal side didn’t have the experience to know what to ask for. Since the cases were few and far between, everyone scrambled when a whiff of litigation came. The legal team would ask for everything to be given to them the next day and IT would say “Sure, right, I’ll get on that.” in a sarcastic way assuming that the legal folks weren’t really serious. They would say, “We can try to get you the data you need in a few months to the tune of a huge sum of money.” Legal would go back to court and say the data was inaccessible or it would be too expensive to access. To make the problem go away legal would just write a check instead of messing with discovery.
IT knows that back-up tapes are not easily accessed and only as good as the last snapshot. To restore from last week or last month is one thing, but years and years can be very costly. Honestly, most IT folks didn’t really appreciate what eDiscovery was, they just hoped it wouldn’t be dumped at their door. They had a day job to do and it was the legal department’s problem to deal with when litigation came about.
Evolution – eDiscovery:
Fast forward to today. With the amount of time that has passed and numerous articles that have since been written and read, you would hope that the level of disconnect is less. The awareness from both sides has definitely reached a new level but that doesn’t mean there isn’t a disconnect. It’s just reached a higher plane of existence.
From the legal angle, lawyers are more aware that ESI (electronically stored information) is discoverable and can articulate this
need to IT folks. The plane is shifting to new levels because years ago it was email, phone, faxes and documents. Today’s world includes the new frontier of Facebook pages, tweets, texts and who knows what else. Legal knows what the other side can ask for and is better at asking IT to help, but is the sense of urgency there or is it the same as before? Now, there are so many legal forensic tools available or services that can give more power to legal and not allow IT to be the bottleneck.
From the IT perspective, they reluctantly realize that eDiscovery is not going away and it will only get worse. They can’t hide any more and try to respond as fast as they can with they have. If legal searches are too broad then that can backfire when IT goes “Here’s a ton of data, good luck.” but also brings up the discussion about whether legal wants IT combing and organizing data to determine what’s relevant or not.
In reviewing 2013, I found two interesting articles demonstrating that an IT disconnect definitely still exists.
There is a whole range of possibilities why companies can get fined. In L’Abbé v. Allen-Vanguard Corp., the court ordered the defendant to pay a sanction for not meeting court ordered deadlines for ediscovery production. Without knowing the details one can only speculate that the project was under scoped or under resourced. Since most people on the legal side assume that IT has all data at its fingertips then they might wait too long for a heads up. IT has a full time job and can’t drop everything to find data that might not be easily accessible like in emails or remote computers.
Destruction of Data:
Was data accidentally or deleted on purpose? In Fuller Western Rubber Linings Ltd. v. Spence Corrosion Services Ltd., the court found the defendant in contempt of court for the destruction of electronic documents relevant to the litigation. Was the IT group not properly informed of what the policy was so they could protect the information? Maybe the document owners weren’t aware of their custodial duty to save information?
In Apple Inc. v. Samsung Electronics, a decision of the US District Court for the Northern District of California actually found that both parties had destroyed relevant documents.
The courts found that the preservation efforts had failed because Samsung failed to suspend its biweekly email destruction policy. So, was IT not given the right information from legal? Samsung also failed to monitor its employee’s preservation efforts to ensure they were compliant. Was this a legal, HR or IT job? Was it a manual process or should it have been automated?
Regarding Apple, because employees were encouraged to keep the size of their email accounts below a certain limit they might have destroyed relevant emails.
What Data do You Have? :
In the case of Mansfield v’s. Ottawa City, Ontario, it is illustrated the ever evolving nature of eDiscovery and how the level of questioning and requests are getting more and more sophisticated. When the plaintiff became concerned that the defendant had not produced all relevant documents, they brought forth a motion for better documentation of production. The defendant produced evidence about electronic searches for emails in the server but not about other locations such as .PST files or hard copies of emails. In addition to these additional locations the defendant was also asked to review emails in back-up tapes.
It is curious to think; was the IT department not originally asked by legal to produce this information or was the IT department taking the minimal route out because they knew the amount of time and energy required to search these additional data sources? How many backup tapes needed to be searched? What about finding all the PST files and what if they weren’t on the network – such as on individual laptops?
(Full report- Legal Trends)
Over the last few years a growing trend has added a new dimension to the disconnect wheel – shared services. As legal has been overwhelmed with data collection, assessment and review they have turned more and more too augmenting services to assist them meet quality standards and timelines. With FRCP (Federal Rules of Civil Procedure) taking hold a few years ago, there are more specific time frames for the entire discovery process to adhere to. In addition to the “Legal to IT” disconnect, by leveraging outside legal services, this adds a new complexity to management communication and expectations.
The advantages of leveraging outside legal resources can be numerous, however as demonstrated by the case above this adds new communication challenges. Data can be destroyed or not retained, all documents are not located in a timely manner or no one within the organization takes responsibility for managing the case strategy. The time frame to deliver documents can be underestimated. Although outside forensic consultants or legal help might be leveraging to locate evidence, they are dependent on the IT folks to provide access and assist in data discovery.
On the downstream, if outside teams are leveraged for data review, then any questions about data inconsistency or additional requests will need to be routed in a timely manner through the IT staff.
In summary, the vast divide of disconnect has shrunk between the IT and legal teams by sheer market forces – eDiscovery is here to stay and will not be going away soon. Yes, it will most likely happen to your organization and you can only plan so much. Neither side should make assumptions; lines of communication should be open. If outside parties to assist with legal review or forensic discovery are involved, then that layer of complexity and potential disconnect should be factored into the strategy.