From PHX to YYZ

On my flight back to Toronto, I decided to make use of this time to make my contribution to the ‘bits and bytes’ that have gone before me from a 35,000 foot view (how appropriate considering where I am). I wanted to start by stating the obvious, I am a business owner. I continue to manage a litigation support company as I have for the past 8 years. I offer that so readers know the perspective I could take concerning best practices related to electronic evidence management and litigation support. However, the important point is that I am viewing this from is the perspective of a corporate business, where we do have a need for lawyers and at times litigators.

I decided to make a self-assessment of my own technology use and how it would be impacted by “eDiscovery.” As part of my inventory check, I placed all of my electronic business tools that I carry on a regular basis on the pull-out tray. I realized very quickly I needed a larger tray to hold my BlackBerry, cellular phone, laptop, USB key, and an external hard drive.

Although I needed a larger tray, the real questions that came to mind were: is all of this stuff relevant, who is going to look at it and what is it going to cost? And why is that my immediate reaction? As a business, we are for profit, which means at the end of the day, or more appropriately quarterly and annually, we look at our expenses and revenue to see if we made money or not. Anytime we are faced with litigation and discovery obligations we want to limit the ‘amount of stuff that may need to be done.’ In this instance, I would want the lawyer to explain why my electronic gadgets are relevant and what is going to be done to my belongings that I use on a daily basis. The nervous twitch begins as I contemplate BlackBerry withdrawal…for how long I ask? Or perhaps the notion that someone will soon discover that I like to listen to Sugarland or that I have a doctor’s appointment to address high cholesterol will soon become apparent. I realized very quickly that the cold sweat that was breaking out had nothing to do with the airline food (although I did question that) but rather with the fact that I will be inconvenienced and feel my privacy is being violated in some way.

So what can we learn from this self reflection and assessment on eDiscovery? Custodian interviews play an important part in the eDiscovery process. Three important themes arise from my story as a corporate client: privacy, inconvenience, and cost.

In terms of privacy, the reality is that many of us will receive or may access personal emails or electronic material in our business environment. Regardless of acceptable use policies, we may use our email at work to record personal appointments in our calendar, receive a photo from our child as they are playing at a park with friends, or try to move a song from our music account to our iPod. So when I hear you are making an exact copy of my hard drive or perhaps making a copy of my entire mailbox I begin to ponder, did my Uncle Ross quit sending those silly and inappropriate emails? (yes I did ask him to stop). So regardless of the confidentiality that may extend in litigation, I am actually more concerned with privacy. Are there ways to distill relevant evidence quickly and efficiently without baring my soul to the lawyers working for me?

By conducting custodian interviews, not only are you effectively trying to determine what ‘gadgets’ of mine may be relevant, you are also letting me know what the process is about. You instill a small level of comfort that you want to understand how I work to determine where you need to look. Perhaps not all of my gadgets are relevant or require data to be collected from them because you understand when, where, or why I use them. And as such, I may not have to be without my cellular phone or have no BlackBerry or laptop access for two days as it is being ‘acquired.’ You appreciate the importance of minimizing disruption to my business as you go about yours.

Narrowing the scope should help to reduce the cost of processing my data. As well, I have come to realize, what you process will require legal review. And regardless of the billable rates of the lawyers working for me, I know it will be more than my round trip plane ticket to Phoenix. I am not surprised, but I am hopeful that it won’t exceed a the cost of a business ticket for a flight around the world. So I as the flight attendant begins her routine safety instructions of the emergency exits and requests for seats in the upright position, I think back to my conversation with my legal team. They too have described their routine of document review, in particular the instructions for fastening the metadata in a locked position to enable them to utilize technology to my benefit. They have cautioned me that the need for an emergency exit to mediation is not required on this leg of the trip as their approach to review is strategic and leverages state of the art technology. I find comfort not only that my legal team is piloted by a seasoned veteran, but also that her team has the knowledge and experience to ensure we make the right decisions throughout the journey.

By being more precise in your efforts, I hope to see focused preservation, collection, processing, and review of information stored on my ‘gadgets”. This will ensure inconvenience and disruption to my business is minimized, a semblance of privacy may still remain, and the cost of this process wont prevent me from purchasing my next generation ‘gadget’ that will surely be released next month!