Electronic Discovery: Managing the Unmanageable

Concrete and common-sense steps that you and your IT team can take to effectively manage the size and cost of e-discovery.

The e-mail or voice-mail message has a familiar and ominous tone: "This is (insert name of in-house counsel here) from the law department. It looks like there may be some litigation involving (insert product name). We don't have a copy of the complaint (or subpoena) yet, but we know we are going to have a pretty tight deadline for responding, and we will need to coordinate with your IT department. You may receive a call from (insert name of law firm you have never heard of before) in the next couple of days to discuss what we need to do in terms of data preservation and our response. If you have any questions, please call or shoot me an e-mail. Thanks very much and have a good day."

And so it begins. It will not be a good day. This message may be the call to arms in an electronic discovery battle that may materially affect your IT plans, projects, personnel and budget.

Benjamin R. Barnett, a partner at Dechert LLP

Benjamin R. Barnett, a partner at Dechert LLP

Image Credit: Scott NibauerThe critical qualifier is "may." The legal press is chock-full of articles, written by lawyers for lawyers, about how to manage e-discovery. Missing has been straightforward guidance for CIOs about their e-discovery management role. I hope to fill this gap by providing concrete and common-sense steps that you and your IT team can take to effectively manage the size and cost of e-discovery. The first step in this process is to understand some of the e-discovery rules of engagement.

Rule 1: Managing e-discovery is now part of your job.

It may not be in your job description or part of your annual review, but like it or not, you and the IT department are the "e" in e-discovery. You know the data and the systems. You are uniquely qualified to evaluate the cost and complexity of converting corporate data to data for use in litigation. The simple fact is that you and your colleagues from Legal must hang together, or you will hang separately.

Rule 2: E-discovery (for the most part) is a one-way street.

The relevance standards that govern discovery in civil litigation are fairly liberal. This means that your opponent can demand a wide range of information that may or may not seem germane to you. This is not likely to change. Little is gained by railing against the unfairness, inequity or expense of the current system. So get educated (but see Rule 3) and get on with it.

Rule 3: Legal landmarks in the e-discovery minefield are few and far between.

There are no universal legal standards that apply to e-discovery in federal and state civil cases. Although courts have recently started to address electronic discovery, some of these decisions are based on the facts of individual cases and can't -- or shouldn't -- become national standards. New federal rules that relate to e-discovery will become effective in December, but these appear to institutionalize, not limit, the proc¿ess. In any event, no one knows now how federal courts will interpret these rules. In short, you must recognize that there may not be clear legal answers to some of the questions that you and your legal colleagues will face, and there are no off-the-shelf, one-size-fits-all solutions that will make all of your e-discovery worries go away.

Rule 4: E-discovery is a standard arrow in the quiver of your company's opponents.

Like Willie Sutton, who robbed banks because that's where the money is, opposing counsel will target IT because that's where the discoverable information is. E-discovery can be a form of legal judo, where the size and complexity of your IT system will be used against you in an effort to justify sweeping demands for documents or data, depositions of IT personnel and the entry of Draconian discovery orders. The fight is coming, so you need to prepare.

Rule 5: Adverse e-discovery decisions can have a material impact on you and your company.

National news coverage over the past four years regarding allegations of data destruction or data mismanagement involving Fortune 100 companies makes it clear that the risks associated with e-discovery can have a significant effect on a company and its counsel: criminal convictions, bankruptcy, punitive jury awards, negative publicity, government fines and people losing their jobs. Enough said.

Given all this good news -- new job responsibilities, few existing standards, determined and coordinated opponents, and huge risks if things go badly -- you might reasonably ask what you and your company can do to prepare.

The short answer is, plenty.

While it is tempting to be swayed by promises of deliverance from the ediscovery leviathan, one-stop shopping or off-the-shelf software rarely works because every company is different. The real solution lies in common-sense management methods built on planning, communication, execution and evaluation. In fact, in all likelihood, you already have the necessary expertise and resources at your disposal.

I offer no miracle cure for ridding your company of e-discovery ills. Rather, I've outlined steps below to start and guide a dialogue between the legal and IT departments so that together you can create and defend a legal discovery plan that works for your company.

  1. Demand a seat at the table.

    You can't manage e-discovery from the sidelines. IT must have a seat and a voice at the conference table where initial and ongoing discovery decisions are made. Input from IT will be invaluable in helping your company's senior management and attorneys understand the IT structure and the implications of e-discovery demands on the business. Once you have that seat and clear authority, you need to ...
  2. Understand the litigation inside and out.

    Information is power in e-discovery. You can't function as an equal team member or adviser unless you know what your company is up against. Remember, you're the expert. Immediately after notification of potential litigation, assemble your team and schedule an open-ended meeting (no one-hour limit, no BlackBerries) with your company's counsel to learn everything you can about the litigation. Your questions should cover all relevant areas and be exhaustive: Will this litigation involve a single case or thousands of cases? How many employees does it implicate? Which documents and data need to be preserved? What types of data are likely to be requested? How long will this go on? At this meeting, you also must be prepared to answer questions so that you can ...
  3. Educate your attorneys.

    Any misunderstanding between your legal and IT departments can benefit your opponents. To lessen this risk, make certain that you speak a common language and that your in-house and outside attorneys understand both your IT structure and how your IT processes can be affected by e-discovery. This may require multiple representatives who speak for the various components of your IT organization. This role of educator and adviser is both immediate (one can preserve data only if one knows where the data is) and ongoing (discovery is necessarily evolutionary as the parties learn more about a case). When you understand the litigation and your counsel understands your IT organization, you are both prepared to ...
  4. Craft an overall discovery plan.

    Armed with a mutual understanding of the looming litigation and your IT structure, your team should map out its global e-discovery plan for the preservation, collection, review and production of the relevant documents and data. This plan should not only ensure that your company meets its legal obligations, but also be commensurate with the potential scope of the litigation, reduce the burden on ongoing business operations, be cost-effective, be strategic in selecting the discovery battles to fight, and be aligned with the company's trial and public relations plan. Creating and regularly re-evaluating this plan will also give you a valuable opportunity to ...
  5. Learn the players.

    E-discovery in any significant litigation will involve in-house counsel, outside counsel and potentially a broad array of vendors. These individuals will effectively serve as your larger team. Solid team and individual relationships are critical to withstanding and overcoming the inherent pressure of litigation. Building relationships takes time and commitment, but investment in both will pay significant dividends in the long run. All of this effort can be undone, however, unless there is a proc¿ess in place to ...
  6. Communicate in real time.

    Many mistakes in e-discovery are simply the result of poor communication: Data isn't preserved because the responsible IT staffers weren't told that it needed to be preserved, or a production deadline isn't met because counsel didn't understand or appreciate the complexity involved. While it's difficult to prevent such errors entirely, there must be a communication system in place so that everyone involved knows of litigation developments immediately. This communication plan should also include a decision-making body that can resolve any conflicts that arise within the e-discovery team.

By implementing these steps in a consistent and coordinated fashion, your IT team will be able to play its proper role in working with your company's counsel to help manage the risks and costs associated with electronic discovery. At that point, calls from your legal department concerning e-discovery will simply trigger your existing e-discovery plan -- instead of the current dread -- and that will make for a better day for both you and your company.

Barnett is a partner at Dechert LLP in Philadelphia who specializes in helping companies prepare for and manage electronic discovery. Contact him at benjamin.barnett@dechert.com.

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