I tuned into a webinar yesterday put on by ACEDS, and then saw today that Jared Coseglia, from TRU Staffing Partners, had posted an article with many of the same points he mentioned on the webinar. If you’re in the eDiscovery space or want to get into the eDiscovery space, this is worth a read:
See Jon, even when the investigation has nothing to do with you, those comments you made in the email exist, and the guy you sent them to didn’t, or couldn’t, delete them. So even though they may have flown under the radar for all these years, all it took was one investigation or lawsuit to involve the other people on the email chain, and everything you said is now out there.
You would think people would stop having to relearn this lesson every few years, but alas here we are.
Where I will disagree with Doug though is when he says few people are talking about this. I have this conversation with clients, peers, and others, every single day, sometimes multiple times in a day.
Everyone is talking about it, but they aren’t talking about it in regards to email, rather it is within collaboration platforms like Teams and Slack where shared files are always links, and those links may be in a variety of locations.
Those linked files matter, but not in the same way an email attachment used it, and legal teams are going to have to understand all of that. Is your team ready?
It’s not normal for us to be using a platform that works one way, then changes and works another way two weeks later, but that is absolutely the way the Agile development is going to happen. The decision to change will be pushed by the business case for making the change, eDiscovery will be a second thought, if a thought at all.
That means two things in my mind in addition to the things Greg lays out in his post below.
1. You have to test, test, test. Constantly. You have to stay on top of new features, old feature changes, undocumented changes, etc.
2. The legal industry as a whole is going to have to get a lot more comfortable with “good faith efforts” being a little more of a gray area as these changes get made. What we could collect easily before, may require a lot more time and effort today, or it may not be possible today because of a bug in a recent update.
It’s going to happen. Whether you want to talk about M365, Google, cloud document management, cloud review platforms, or even cloud backups. Things will happen beyond our ability to control them, and those things will impact eDiscovery. Are we going to be OK accepting that?
But, should that mean that eDiscovery companies need to be on call to assist with anything beyond an emergency during those late hour sessions? I’m not sure what the answer is, but I know the expectation will definitely be that support is available, which creates a problem for vendors, notably they owe their employees some work-life balance as well. If I’m a project manager on this review, I shouldn’t be expected to be available for all of the variations of work schedules that will exist among a team of lawyers. Thankfully, this is something our industry has started to move away from, but truly moving away from it means hiring more staff to cover those odd hours.
In the absence of that staff being on board though, we are all risking massive turnover if we expect to have 24×7 coverage for these projects.
Is it worth it to set that expectation? Or should we consider something else?
Personally, and with full acknowledgement that I am not a lawyer, I am glad to see the Sedona Conference commentary taking a balanced approach to this.