Lawyers Share E-Discovery Woes

By James Rogers, February 7, 2008 5:50 PM

NEW YORK -- More than a year after the Federal Rules of Civil Procedure (FRCP) were amended to bring electronic information more into the pretrial process, many users have still not tackled the storage challenges of e-discovery.

From backup tapes hidden in the floor to unresponsive ERP systems and a worrying lack of knowledge from key personnel, users are wrestling with multiple challenges.

"This race is far from over," warned Andrew Drake, senior counsel for discovery management at Nationwide, during a panel discussion at the LegalTech show this morning, highlighting the surprising lack of e-discovery know-how at some organizations.

"I was talking to the inside counsel of a regional utility who was basically having a problem getting his CIO to admit that content stored in email is actually a record," added Drake. "How is this not settled at this point?"Another panelist, Thomas Lidbury, a partner at law firm Mayer Brown, agreed that many organizations haven't come to grips with e-discovery.

"The records management challenges that I see relate to legal holds," he said. "A lot of companies don't have a great process for that so they hold onto backup tapes -- it's almost impossible to get rid of anything."

Last year, for example, a survey of 450 IT professionals by e-discovery vendor Autonomy found that almost 70 percent of firms were keeping hold of their backup tapes longer than they should -- in case of a legal dispute.

Guidance Software general counsel Patrick Zeller, who moderated today's panel, admitted that tapes have typically been the Achilles' heel of e-discovery, and he described some of his past experiences as a state and federal prosecutor.

"Oftentimes tapes weren't being rotated -- they were being shoved in closets, and in one case under an elevated floor," he said. "There were hundreds and hundreds of tapes that no one knew were there."The exec feels that many firms have nonetheless "cleaned up" their e-discovery efforts around backup tapes in the last year. "It's one [area] where large companies are working to close some of the gaps," he explained.

A key theme that emerged during today's panel discussion was how best to avoid relying on end users to keep records that might be needed in a court case. "Relying on humans is obviously a risk factor," explained Mayer Brown's Lidbury, advocating instead a process called "early selection," where the company quickly identifies which information must not be deleted in the event of legal action.

Mayer Brown is using Guidance Software's EnCase auditing software to support its efforts in this space, although other vendors are also getting in on this act, such as Kazeon, which unveiled its Early Case and Risk Assessment Services this week.

Despite a recent flurry of activity from e-discovery vendors, one legal expert taking part in today's discussion urged users not to relinquish too much control of their systems. "You will actually find a lot of efficiency if you are doing [data] collection in-house -- you will find that that the data can be re-used for multiple cases," said Pallab Chakraborty, senior manager for IT litigation support at Cisco.

Nationwide's Drake agreed that in-house e-discovery has multiple benefits. "I dont think that liability has ever gone away by shifting it or trying to shift it to a third party," he said. "I sleep better at night knowing that I have got specific processes, controls, and a structured methodology."Cisco's Chakraborty also urged IT managers to look beyond just email servers when it comes to e-discovery. "We have been talking mostly about email and personnel-related files, but the real beasts out there are your ERP systems and your massive data warehouses," he explained.

He said that massive data warehouses that support a business are tough to query in case of a litigation search. Queries can run for weeks or even months. "You need to begin a dialogue with the [IT and legal] teams early on, and outside counsel needs to be told about it very, very early," Chakraborty said. "You can easily bring down one of these systems."

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