Is Legal Stepping Up To The eDiscovery Plate?

Irony alert: Attorneys are not exactly known as early technology adopters. Some individual lawyers are sophisticated technology users of course, but this ability does not characterize the legal profession (to say the least). This tendency to ignore eDiscovery technology is particularly marked in the earlier phases of the EDRM where IT is deeply involved. Corporate Legal issues its ESI collection and preservation requests to IT and data custodians, largely divorcing itself from the challenges of searching huge data volumes within a narrow timeline.

But with eDiscovery risks increasing, this unwillingness to get involved in the reality of early eDiscovery is becoming a serious problem. If IT is unable to retrieve and protect the proper amount of relevant data - all within the short period of time mandated by FRCP - then it's not IT that suffers. It's the Legal department.

It's the attorneys who are on the front line in meet-and-confer, settlement and strategy meetings, and trial. If the attorneys are working with late, inadequate or poorly protected data, all the review and trial skills in the world won't help. The bench is starting to hate scorched-earth litigation, where poor eDiscovery is either ignored or used as a weapon against opposing counsel. The judges are coming down hard on ill-prepared eDiscovery responses, and hapless attorneys are risking fees, sanctions, missed settlements and adverse judgments.

The upshot is that Legal and IT must begin to work together effectively from the very start. Ad-hoc Google-like searches won't cut it for eDiscovery queries. Data is not properly preserved by copying Exchange emails onto a CD, locating 100 tapes out of a possible 10,000 because no one has a workable recovery method, or emailing custodians and telling them not to delete their emails.

Luckily for all, there are software tools that do proactive data retention, collection and preservation. Any IT department that deals with Legal on a regular basis should know about them, and Legal should find out by working closely with IT. These tools improve business processes all through the enterprise: eDiscovery, compliance, governance and data management. The corporation needs them.The education challenge can be frustrating, but it also provides a great opportunity for vendors who operate on the left-hand side of the EDRM. They have the chance to educate IT and Legal about how they can work together to dramatically lower money, time and risk in an eDiscovery action. I grant that this can be a hard shift for Legal to make as it changes long-held corporate culture and processes, but it is a shift that is being driven from federal regulations and from the bench, and puts teeth in new ways of doing eDiscovery.