Being an analyst is a funny old thing. I’ve been talking about e-Discovery for a few years now and so much of what I said and wrote for Gartner at the beginning of the current e-Discovery hype seems very old news indeed. One of our cardinal pieces of advice is that in matters of data retention, information management policy and particularly e-discovery, that lawyers and IT both had a role to play. The two groups needed to talk to each other. From that, Good Things would flow. Surely I thought, they must all know they need each other by now. Time to move on.
Not so much. At last weeks’ Governance Risk and Compliance Summit in Chicago, I learned that there are still many IT types being handed instructions like, ‘Keep all the responsive data’, ‘Data retention policy is your job because data management is your job’, ‘Its up to YOU to create an e-mail usage policy’. Because the dialog has started, at least among our clients, I also had a chance to hear it from the lawyer’s point of view.
They are being told things like “Well, we ran the searches you asked for with the keywords you asked for and we got 10 million hits. They’re here: c:/lawyer_archive/XYZ-SNAST18.104.22.168/that_ought_to_keep_you_troublemakers_busy_for_a_while. Let us know if you need any help.”
Those aren’t dialogs, they are a lazy cop-outs and/or a grave lack of understanding of what really needs to happen. I used the word grave with intent. Not understanding technology is becoming a handicap for lawyers and indeed at least one high profile Magistrate Judge has stated that lawyers need to understand technology to do their jobs. Electronically stored information is now the predominate form of business record. Lawyers (partners, not junior associate spear carrying types) who know this area stress the need for involvement from senior litigators, because e-Discovery is can often be a strategic issue in preparing a case.
In dealing with e-Discovery, retention and policy issues, our cardinal piece of advice remains to set up an on-going dialog with one another: legal and IT. Hey, you might even want to include those much maligned but sadly necessary ‘business users’ at some point. Many companies do already do this, don’t get me wrong, and we are seeing the creation of more positions that are liaison positions, permanent links between the two groups. But there is still a long way to go.
Here’s some do-it-yourself advice if you need it, particularly if you are from IT and are feeling overwhelmed with the tasks you may be being given to do around e-Discovery.
Begin by familiarizing yourself with the e-Discovery Reference Model (www.edrm.net). You can read all about it there, but I use it to explain the process to IT clients and demonstrate to the lawyers which technology can be used for what part of the process. The EDRM is vendor neutral, the steps are explained in a wiki on the site, and it really does help to clarify and explicate the issues. There are Those Who Say that the model is too simple and doesn’t include things like ‘early case assessment’ (ignore this if you are a novice.) But we still find it very useful, despite its relative simplicity, and those that do the most complaining are the vendors that can’t sell what they have based on the model. Simple explanations are always the best, IMHO, and if something cannot be explained simply, then the person doing the explaining doesn’t really understand what they are talking about in the first place. Either that or they are trying to confuse you into a panic-y state to soften you up for something, usually signing a contract.
So, I will continue to repeat myself, even though I feel I must be boring everyone into a stupor. My advice does meet my own criteria after all, in being simple: go knock on the door of your inside counsel and start a dialog. If you are a lawyer, don’t expect your IT partners to understand what you are talking about when you say ‘Save responsive documents’. If you do, don’t be surprised when they then complain that the ‘litigation hold policy’ is costing them too much and taking too much of their time. It is not reasonable to ask them to do this: storage of electronic information is NOT cheap, despite any rumours you may have heard. Neither legal or IT should return to their respective tribal habitats until both sides are sure they understand what is being said. House counsel and in-house IT are on the same side. Indeed, according to The Sedona Collaboration Proclamation(www.thesedonaconference.org/), you should even be co-operating with your adversaries, on discovery issues anyway, and save the fighting for the substantive issues of the case. See? I can speak a bit of Lawyer.
The evidence from the conference is clear. Two and a half years after the changes to the Rules of Civil Procedure, the respective responsibilities of legal and IT still are not being carried out by many because they don’t understand them. Only dialog between legal and IT will change that.
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