Get To Know Your Legal Department
Industry Trends in Legal and Information Management

E-discovery can be a blessing or a curse for the management of information within your organization. Those in knowledge and information management who think of e-discovery as purely a legal issue and stick their heads in the sand will quickly be left behind, or worse, shown the door. But by educating yourself with some e-discovery basics, you can proactively manage information and address both the knowledge and legal needs of your organization.

The Acceleration of Information Growth
New sources of information, such as Web 2.0 tools, cloud computing, unified communication and virtualization, are creating exciting opportunities to more rapidly share knowledge and promote collaboration. However, these technologies present unique e-discovery challenges that will keep IT, legal and information management (KM and RM) professionals working at full capacity.

Regulated companies, such as those in financial services, biotech and pharmaceutical, oil and gas and telecommunications, will continue to take a cautious approach to these Web 2.0 technologies, primarily on account of concerns related to e-discovery and compliance. It is no longer in-house counsel’s job to just review technology contracts; we have begun to see corporate legal departments brought in during evaluations of new technologies to determine how they will affect e-discovery. By proactively bringing IT and legal in on the selection process of new information management tools, all parties can weigh in on the benefits and risks of the information that resides within an organization.

In order to address e-discovery requirements, many traditionally fall back to creating a forensic image of the entire hard drive before even knowing whether the hard drive contains the data that might be responsive to a lawsuit or regulatory inquiry. Companies and their counsel began questioning why mountains of full hard drive images were piling up, and what should be done with them. In the majority of cases, only a small percentage of the data was ever responsive. Most companies found that they were both over-collecting and over-preserving data, which meant that they were over-spending as well. The decision to delete information can be extremely difficult, especially if no one knows anything about the content in the hard drive or file share.

Increasingly, tools are being adopted that enable companies to identify relevant data on their networks down to the individual file before preservation. By all accounts, traditional keyword search alone is insufficient for this task, so legal professionals will turn to products with advanced conceptual search technology, which enables far greater precision and recall in search results. In addition, with conceptual search, information specialists can perform searches based on a host of parameters such as date range, email domain, file type and email sender/recipient. The end result of this process is to preserve only the data truly responsive to a particular matter, which also reduces the amount of data that might need to be reviewed downstream.

Many law firms are moving to a standardized e-discovery platform in order to provide a cost-effective, competitive, repeatable and defensible process for e-discovery to clients. Such a shift has been enabled by the maturation of a few e-discovery applications that have expanded their functionality to include all phases of the e-discovery process, from data processing to sophisticated search to full production. An e-discovery platform with  technology such as integrated conceptual search, support for non-linear review and email analytics provides more effective, higher value and lower cost e-discovery services.

Law firms will also require e-discovery platforms to provide quality assurance, process documentation, reporting, security and auditing to support their investment and ensure that their e-discovery program is repeatable and defensible.

Privilege Review and Rule 502
On the legal front, the enactment of Federal Rule of Evidence, Rule 502 basically provides that an inadvertent disclosure “in a federal proceeding or to a federal office or agency” is not a waiver if the holder “took reasonable steps to prevent disclosure” and “promptly took reasonable steps to rectify the error.” The advisory committee recognized the practical realities of electronic document review by saying that a party that uses “advanced analytical software applications and linguistic tools” in screening for privilege and work product (e.g., searching for key names and terms) may be found to have taken “reasonable steps” to prevent inadvertent disclosure.

Although Rule 502 was billed as the tool that would help minimize costs associated with privilege review, most legal counsel have yet to see these benefits in practice. In the recent 2009 Fulbright & Jaworski LLP Litigation Trends Survey of corporate counsel, 89% of respondents reported that Federal Rule of Evidence 502 had resulted in no savings for their companies.

We expect to see further judicial decisions regarding the application of Rule 502. Undoubtedly, e-discovery technology vendors will begin building tools to automate the heavy manual process of privilege review and will work with their clients to develop processes and workflows around these tools. We ourselves have done so. E-discovery technologies that can assist with automatic recognition and categorization of likely privileged communications will be in high demand.

These and many developments in the e-discovery industry will continue to have an impact upon knowledge and information management professionals. We will see end-to-end e-discovery systems adopted by law firms and corporations and staffed by a new breed of practitioners knowledgeable about issues in information management and the law. Isn’t it time for you to get to know your organization’s legal department?