E-discovery—The Courts are Evolving, are You?

It's spring of 2007 and you are evaluating a court order to produce highly detailed electronic documents, records, emails and voice mail messages. With all of your planning, who would think that an employee's cell phone could contain nearly two gigabytes of email, documents, records, corporate voice mails and instant messages?

More and more of the information that powers our lives and businesses is digital, and every day there are more methods of delivery and consumption of that information. To gain competitive advantage through technology, organizations are under constant pressure to keep abreast of those technologies, especially those technologies that make organizations more agile and competitive. Many times, the desire to reap the benefits of those technologies outpaces oversight processes. When information is not managed with compliance oversight, recent court awards demonstrate the potential for significant judgments.

Upcoming changes in the Federal Rules of Civil Procedure regarding e-discovery directives will uniformly establish more rigorous standards covering what electronic information can be discovered, and also guidance for the form and method that information must be presented. Additionally, the judiciary is directed to ascertain whether or not organizations have adequately managed their electronic information or not. Those organizations that can demonstrate good information management practices should be granted leniency, or a "safe harbor;" those that do not are subject to direct access to their information systems, or "doomsday."

Most organizations are compliant with the new rules in some areas, somewhat compliant in some areas and noncompliant in others. With information systems, it may not be quite as simple as taking the processes that we are doing well and extending that across the organization. Most of the existing compliant systems are the direct result of a particular process that has required the managed handling of electronic content. As an example, a compliant email management and archiving system may satisfy the new rules, but cannot be easily extended to include documents on shared drives, local hard drives or Web sites.

Obviously, the first step is to assess your organization's current status and what would be required to be responsive to e-discovery directives. Every organization may have different functional groups contributing to this assessment, but legal, information technology, business domain experts, document and records managers and risk management personnel should participate. In addition to providing an assessment, this group should also develop a contingency plan and a vision for the organization becoming totally compliant in the future. Ideally, this group would establish a permanent entity that continuously directs ongoing technology projects to assure continuing compliance. There are a growing number of highly qualified experts and organizations that can assist and facilitate your efforts.

Initially, the thought of producing electronic documents based on a specific requirement does not seem too daunting. First, your legal team evaluates the request for production and provides guidance for collecting responsive documents. The legal team's familiarity with the systems infrastructure and procedures provides multiple benefits. If the discovery scope and complexity are understood by the court, in most cases the delivery expectations will be in line with organizational capabilities.

During one of the corporate scandals, a confident lawyer claimed how efficient his email management system was and the court took him up on it. Tens of terabytes of email that had not been processed were ordered to be searched to find a couple of specific email attachments. Since the system was so good, it was seen as reasonable by the court to expect results in 10 days over a holiday weekend. Needless to say, there were a number of IT folks that did not have a holiday and also did not have nice things to say about the boastful lawyer.

The other benefit is that the request will provide clear direction to the staff on where to search, what kinds of documents are desired and when to seek further guidance from the legal team. Since legal assets may be the highest cost line item of a production response, an ideal system would minimize their involvement with tasks that could be assigned to lower cost individuals or, even better, automated systems.

Once you know what you are looking for, where do you need to go to find it? Do you have a corporate repository where all information is stored, or do you have a distributed system where content resides on users' devices and drives, or a myriad of stovepipe systems? What information resides on your Internet and intranet sites? Is your information saved in its native format with appropriate metadata as the federal rules mandate? Do you need to search the mini-SD drive on your employees' cell phones?

Now you know what you are looking for and where to find it...so how do you do that? If your information is stored in an enterprise content management system, you will only have one place to search and you will be able to search a variety of metadata fields as well as the content of all appropriate documents, emails, Web sites, etc. If you need to search shared network drives and local hard drives, how do you search the contents of those files? Perhaps you have a corporate search utility. Does that search utility tell you when and who authored that document? Do you have a corporate thesaurus to assist in the search? Does your search engine provide for concept searching? Are all of your corporate documents in English and if not, how do you find them? How do your electronic documents relate to the printed versions?

So you have found all the information that was requested by the legal team...what are you going to present to them? If there is duplicate content, who determines which one best addresses your organization's response? Most ECM systems store a single copy of each document and use metadata to relate other uses of that same content. Is there any way you can guarantee the authenticity of particular documents? Some ECM systems provide complete audit history capabilities, establishing evidentiary proof of authenticity. The key point here is that there are legal costs that can be minimized.