Corporate litigation is often inevitable but preparation for that inevitability is controllable. So why so often during corporate litigation have I attended a meeting where legal and IT teams are introducing themselves across the table?
The truth is that successful companies have embraced the brotherly bond that IT and legal departments share in this age of technology. Your IT and legal teams should be talking every day. It’s crucial to avoiding document retention issues, e-mail archiving and a whole host of complex issues that are crucial to managing discovery. And successful companies don’t simply embrace this bond they create a plan, put processes in place, and stick to the strategies they lay out.
In the traditional corporate environment, the accepted policy has followed the mantra “legal is legal’s problem.” But companies today have recognized that any legal issue isn’t just the legal department’s problem anymore, especially when a lawsuit is filed. The amount of electronic processing that comes into play across the entire company builds an even larger role for the IT team in preserving and collecting documents relevant to the litigation. Paralegals aren’t specialized in stopping staff members from deleting email; the nature of email correspondence and like forms of electronic documentation requires the delicate touch of IT personnel. The closer the IT person is knitted into that environment, the better.
What feeds this disconnect between departments? Well, for one, it’s easy to cut costs early on, but it can put you in a bad position later. The emergence of comprehensive e-discovery technology has pushed more services in-house. Many companies load up legal and allow them to purchase the software they need. Then, paralegals and non-qualified personnel end up trying to de-duplicate, search and filter electronic data, and many of them aren’t trained well enough to do this effectively. What about defensibility, chain of custody and other critical procedures required to defend the relevance of the data used during litigation and in court?
In contrast, the companies that do it right integrate legal and IT so IT staff can step in and take care of the technical aspects. Why? Because search technology is complex, and it takes someone knowledgeable in IT to manage it. Transversely, IT personnel aren’t versed in law. Data shouldn’t be handled as data, but as “evidence”, a very distinct difference when dealing with critical information that requires special handling, documentation and procedures at every juncture. Some legal departments even employ their own IT staffer within the group to manage the technical end and communicate with the IT group. This is a great way to let your IT group focus on typical IT help desk issues while one or more professionals dedicate themselves solely to the needs of the legal department.
The IT team must be involved from the very beginning. After all, who knows software and the many places that data can hide throughout an organization better than IT? You want to choose the right e-discovery solution, so you need the right professionals to be involved.
Let’s look at a scenario. Pretend an employee has an attachment and sends it out to 20 people. A lawsuit is filed, and the company in question has to provide documents relevant to the case. Because that attachment is the same for all 20 people, there is no reason to read it 20 times when you’re collecting the facts for the case. This holds true for a large minority of duplicate and potentially non-responsive records.
A paralegal runs a deduplication program reducing the total number of records from one million to 800,000. That same paralegal is called up on the witness stand nine months later, and the judge questions him/her on the relevance of removing some 200,000 records. You must have a defensible position. If the paralegal only knows how to run the initial deduplication (which is often the case), he/she probably won’t know how to run a report on what was accomplished during the deduplication process.
How does the judge know he/she didn’t remove documents that ultimately could have taken the case in a different direction? Were the processes documented? Can the procedure be reproduced? Does anyone even remember what happened nine months ago?
If you can’t prove why you’ve done what you’ve done, you leave yourself in a tough position. The same applies for search terms. Searching through one million records for the relevant ones based upon key terms, concepts, dates, etc., is painstaking, time-consuming and extraordinarily complex. If you don’t have the IT expertise to explain how you narrowed down your search, you don’t have the defensibility you need to hold up in court.
The organization that embraces the disconnect between IT and legal as a business problem is the organization that does it right. Create a planning statement and define the roles IT and legal departments will play together. If you do it early enough and adhere to the plan, you don’t run the potentially costly risks of finding yourself indefensible in court.
Dean Kuhlmann is responsible for sales, client and partner relationships as well as product positioning with the Viewpoint product line for Lateral Data, a provider of eDiscovery solutions. Drawing from his technical expertise as a hardware engineer, Dean brings more than 24 years of sales, consulting, and executive management experience in the eDiscovery, legal, and technology industries to Lateral Data.