I spent some office time today listening in on the 10 Things every Corporate Legal Department Should know about Discovery webinar sponsored by Mimosa Systems today, and had a few notes that I posted to Twitter, and want to talk a bit more about here.
The speaker for this webinar was Bill Savarino, Partner at Cohen Mahr LLP in Washington DC. His points were mostly aimed at corporate legal departments more than law firms, but I wanted to get a sense for what he was telling those folks, because those are the same issues facing our clients and it’s good to have some idea of where they are.
The first thing Bill said was that corporations that do not have a retention policy covering their electronic documents, are already behind the curve and are keeping much more than they need to. Couldn’t agree more. I saw this when I worked in IT, and I see it with clients all the time. There is just so much stuff to go through and review, simply because they’ve kept everything. Years worth of emails, documents, database records, backup tapes, etc. add up to quite a large legal bill for e-discovery purposes. The more “stuff” the harder it is to find the relevant documents to any litigation, and the harder it is to find, the longer it’s going to take, and the more it’s going to cost.
He suggested working with your legal team, and taking a look at ARMA for samples of policies.
The next point Bill made that I mentioned on Twitter was that there should be a good relationship between your legal department and IT department. It’s not the first time I’ve heard this advice when it comes to e-discovery. This was also the tweet that got the most response, because I added that it’s not something I’ve seen very often at all! Obviously, I’m not alone in that opinion. Of course, the importance of it is obvious whenever you stop to think about how you respond to litigation. One of the first steps your legal team is going to do, is have to figure out where the relevant Electronically Stored Information is. Who knows that better than your IT department?
Case in point, last year at another conference, speakers referred to the “IT guy with backup tapes in his trunk.” Since I used to be that guy, it certainly rang a bell to me! Let’s face it, when your legal department gets wind of litigation they’re probably going to go to the CEO and other executives to formulate a plan. Do any of those folks know all the places where documents might be stored? I bet not. But I bet there’s some random person in the IT department, who’s been there forever, and knows where everything is, who no one even thinks about getting involved.
I’m not a lawyer, but I know enough about IT to know that this is probably pretty good legal advice, and I know from experience, and from what I hear in the industry, that lawyers and techies, do not get along very often. But they absolutely should. Lawyers need the techies to locate ESI quickly and correctly, and techies need lawyers to guide them when searching for and working with relevant documents, so that they do so appropriately.
One of the more “interesting” pieces of advice Bill had was for organizations to do this in-house as opposed to outsourcing the collecting and culling of e-discover because of the cost of doing so. I had a bit of a problem with that advice, simply because not every IT department has the expertise to do this correctly. Many medium sized and smaller organizations probably shouldn’t be doing this on their own, they need an outside expert. Lord knows when I was a one-man IT shop at a small organization, I had no business doing this! Of course, the webinar was sponsored by a company that sells email archiving and discovery solutions, that help give you more ability to do this in house, for a price. I’m not certain that fact is unrelated to the advice, unfortunately.
He also mentioned, several times, that when it comes to technology like thumb drives, working from home computers, instant messaging, etc. “If you can’t manage it, ban it”. I thought to myself, that horse has already left the barn. Most of us know there are a ton of people using thumb drives to take work home, logging in from their home PC’s, using personal cell phones to conduct business calls, or text messages, etc. I’m not so sure you can put that genie back in the bottle. At best, perhaps you can educate employees on the risk of their home PC’s being seized and searched if the company gets involved in some investigation and they’ve used them to do work. I’m still not sure that would stop it.
Lastly, one suggestion I could get behind was to look for tech savvy attorney’s with experience working in e-discovery when it comes time to find outside counsel. This is, of course, where I point out that I’m not an attorney, and none of the advice that I’m sharing with you from the webinar should be taken as coming from me. You should find yourself one of those attorneys with experience dealing with technology, e-discovery and retention policies and talk to them about the best way to protect your business.