I am always very surprised to see and hear that there are still some lawyers, judges, CIOs and other officers who don’t know what Electronic Discovery is. Actually, this is not true. I am not surprised, and why would I be about something that we are only forced to learn when we are exposed to it. Most people learn about e-discovery when they are involved in a lawsuit. Why would I be interested in it if I am not involved in a lawsuit? Well, there are 2 reasons: I want to make money from it, which is a very good reason; or simply because, as a good manager, I want to be ready before it hits me, which is a better reason.
You never know when it will hit you
I was exposed to E-discovery in 2001. Already then, e-discovery was known in the United States. I was going to say well known but my experience convinced me otherwise. Because of my expertise as a technical consultant for a legal department, I was asked to coordinate the e-discovery process of an important litigation. I soon came to realize that the success of such a process is intimately linked to knowledge. What knowledge, I can hear you ask? In this case, it was my lack of knowledge of pretty much all aspects of e-discovery. What I knew then was the technology used in a legal environment. I didn’t know much about law and I don’t know more about law today. I knew I had to seek help to succeed. That was my knowledge then. So there I was with a very important task at hand, which was given to me out of the blue.
The song remains the same
7 years later, I can see that the same questions I was asking myself then are still the questions raised today and that the issue of the adoption of the e-discovery by the legal community is still a big battle. Some people will tell me that it as been adopted but I think it is done more as an obligation than out of free will. I think the constant evolution and the emerging of new technologies every day makes it very difficult for law practitioners. What am I saying? It makes it difficult for everybody.
For me, there are 3 aspects to the problem.
The first aspect is to know what technology is available, how it can help and when it should be used. What is forensics and when and why to use it? Do I need litigation software?
The second aspect is even more challenging. The use of computers, software, file servers, networks, portable devices (PDA), scanners, mobile disk, Internet, e-mails and more in every aspect of our work, has made it very difficult for any individual to fully understand the ramifications and the impact of every part of a company’s technology infrastructure. Now documents, which used to be a simple piece of paper, can be a video, e-mail and even a database. What about metadata and log files? The very definition of a document is now a matter of debate.
The last aspect is time. I mean time in every way you know it. Sometimes cases go back 3 and 4 years. The technology used by your client then may be different to the one in place today, which makes it more difficult to retrieve all the information. Since electronic documents are more likely to change, migrate, duplicate and/or disappear than the paper documents, again retrieving the pertinent documents in the ocean of data become challenging. Time to learn technology and how to use it is also a part of the equation and what about the time required to handle the e-discovery process altogether?
My conclusion about e-discovery is that it is not really complicated. In fact, I think it is simple. The reason why it may seem complicated depends on the knowledge or more precisely on the lack of knowledge of a single individual about all aspects of technology and his need to find help and good knowledge resources. In better terms: you have to be ready for it.
First of all, an e-discovery action is a project. It has a start and an end. It has milestones, resources, deadlines and so on. It can be a long and lengthy project or a very small and short project. Understanding that we need a good project manager to achieve success in an e-discovery action is not only important, it is crucial.
By definition, Electronic Discovery is the collection, preparation, review and distribution of electronic documents associated with legal proceedings. This you probably already knew. I didn’t in 2001. What I knew then was the life cycle / phases of a project; initiating processes, planning processes, monitoring & controlling processes, executing processes and closing processes. Following those phases provided me with enough structure to draw a path to success. So I suggest either you learn about project management or find yourself a good project manager to help you.
Resources and knowledge Management
Even today it is hard to find someone who has heard about e-discovery, but if you have a good business network, you will find eventually someone who has handled e-discovery processes but only after much research. In 2001, in Canada you could count the number of people who knew about e-discovery on the fingers of one hand. I was lucky enough to meet Martin Felsky (Commonwealth Legal) at the LegalTech show in Toronto and then Steve Rogers (Digital Evidence International) who provided me with knowledge and direction. What I am trying to say is simply that e-discovery makes no exception when it comes to contacts. You need good ones. Don’t wait until you need help on the matter, plan ahead and develop good partnerships.
Many large law firms have developed those partnership with forensic expects and e-discovery vendors. But even firms with 4 to 10 lawyers can have their preferred vendors. Large corporations and even SMB should take some time to seek knowledge on e-discovery. The task should not be too difficult since the number of vendors is limited. Also, it is easier to find the right partner when time is on your side.
I became very good in document management through this exercise. I didn’t have much choice. One of the main tasks of the planning phase was to identify where documents were located. And let me tell you that there are as many ways to organize and structure document repositories as there are employees in a company. I realized that there is really only one way to reduce the cost of e-discovery for the corporate world and it is by putting in place a well planned and structured document management infrastructure and culture. The cost of putting a document management system in place is easily overrun by the cost of e-discovery in a large corporation.
Document management begins with a document retention policy redacted by the legal department with the collaboration of every departments of the company in order to be implemented across the company. I can provide you with a very good contact in the person of Dominic Jaar of Ledjit Consulting to help you with the redaction and the implementation of a good document retention policy. Dominic can also help you with all your e-discovery needs.
With good document management you should be able to control the information coming in and going out your organization. It helps you retrieve your information when you need it and it can also, if well planed, help you save storage capacity on your servers by reducing the number of duplicates of the same documents or its number of versions.
Less or more, small or big
We have a tendency to think that e-discovery is only for big volumes of documents and big lawsuits. It is not true. In the case of an employee who misused the company computer, it can be helpful to have a forensic expert to capture the data contained in the hard drive for analysis. It does not represent a big volume of documents and it is a quick process.
Determining the scope of the e-discovery helps you reduce the volume of documents as well as the cost associated to it. Active data vs. passive data, time range and which custodians are some questions that should be raised early in the planning process.
Finally what is knowledge?
If everything were perfect, corporations would have documents management systems in place. They would have developed partnerships with e-discovery vendors who would have helped their information technology departments put in place the tools to reduce the costs of a lawsuit involving e-discovery. They would have developed a relationship with a law firm well aware of e-discovery, who themselves have retained the service of an e-discovery expert to help them on their files.
The lesson is that together we know more than we do individually… It is so true for e-discovery.