The Worst—and Best—in E-Discovery
Whether You Celebrate or Mourn is Up To You

Bottom line, you have to understand how your technology works. In court, you will be asked to explain how it works. And opposing counsel will hire technical specialists that can counter-speak against the technology.

Cleaning the Back Office
Bill Johnson is a self-described "old-fashioned IT guy." Part of his company (he’s president and CEO)—TCDI—is devoted to what the website calls "large-scale litigation technology, case management and electronic discovery." Bill simply describes it as traditional data processing, processing large amounts of data securely and reliably. "How to maintain control, not miss things, recover from screwing up data…all that plain vanilla data processing stuff," says Bill, humbly.

Bill thinks most of e-discovery is—and should be—hidden from plain view. "The key is to make the review process, and interfacing with the users, as nice as possible from the back end," he says.

"The biggest mistake companies make is very fundamental: not knowing what they have. And that’s not an e-discovery best practice; that’s an IT best practice. You have to run a good data center, regardless of whether you’re trying to become litigation-ready or not. Things like keeping a good catalog of back-up tapes; it’s fundamental data management," says Bill.

As for electronically stored information such as emails, Bill says his customers are trying to automate the process, and hoping to make it a lot less people-intensive. "Companies want to capture critical relevant email in a routine, automatic way and lessen the impact on the business cycle." How do you do that? "You put it into the backend systems as much as you can. That’s where you can use some of the more advanced search technologies (the "sexy stuff," Bill calls it) to filter through email automatically, segregate the stuff that needs to be saved and move it directly into the review system."

I ask him to describe what these "filters" primarily look for—is it content or is it higher level than that? "It’s primarily based on things like the recipient list, the sender, etc…not so much the content of the messages. I don’t want to say our customers don’t trust the content analysis technology that’s out there, but they are conservative about it. They are in transition; they’re waiting to be convinced they’re not going to miss something." And underscoring his "old-school" rep, he adds, "It’s the old ‘recall/precision’ conundrum… it will probably never go away."

Another thing that isn’t going away very quickly: cost. "It’s SO expensive if you don’t have a records management solution for electronic content already in-house. It’s a major undertaking," agrees Bill. "In times of budget constraint, it’s still a hard sale to spend millions of dollars on ECM or a records management solution. It’s one of those things that’s easily pushed off. We’re in pretty good shape…IT says the back-up tapes are organized…we kinda know where things are…" Bill is lucky, though. Most of his customers have been involved in litigation defense for more than 20 years.

But for some, he says, "There’s a huge disconnect between perception and reality. We get a lot of attorneys who say ‘I love your system, but what I really want to do is just Google.’ Well, it’s hard to explain that Google may have found the 15 most relevant documents, but it might have left 500 behind. You have to have a fundamental understanding of what the search tool is doing. And a lot of people don’t have that. If you’re going to rely on search to cull materials for a discovery, you better have a deep understanding of the search you use, all the way down to the algorithm. And you need to provide a layman-understandable explanation of how your search works. The typical lawyer isn’t yet savvy enough about the technology."

Look On the Bright Side
As I said earlier, I asked my interviewees to describe some "worst practices" as a way to get to some lessons learned. But Sean Regan, the product marketing manager for Symantec Enterprise Vault, wanted to make sure this article wasn’t entirely negative.

"In the majority of the most recent high-profile cases (Bear Stearns, Lehman Brothers, Fannie Mae, Standard & Poor’s) the news was about the actual issues…not that they couldn’t present the data, or the data was faulty or manipulated," Sean reminds us. "I see that as a positive sign. These cases can be seen as examples where the people got it right. Some of the transparency that the public has demanded, and regulatory bodies have implemented, is actually working."

Companies are trying to be more proactive, Sean admits, because they’ve seen the costs that can be associated. "We’ve had a good three years of seeing many mistakes play out," says Sean, and he thinks the message is being heard. "People are very interested in making sure it doesn’t happen to them," he laughs.

"It’s not fun to pay into an insurance policy, but when you need it and it pays back, it feels really good," he says. "We’ve had customers tell us they could have paid for a complete information management system for what they spent on a single case."

And, Sean thinks, the money is increasingly being well-spent. "A lot of companies have lived in a ‘Groundhog Day’ state. Every day they wake up and there’s a new investigation or a new litigation. And they go through the same processes over and over again. They look for information, they review it, they present it, then they move on to the next case," describes Sean. "Too often, none of the processes or services are re-used. But companies are starting to build platforms for information management that eliminate a LOT of that inefficiency, and leverage work product over and over."

It can be done. "Too many companies suffer from ‘analysis paralysis.’ They can’t come up with a policy for electronic information, so they end up doing nothing. Best tip: Get IT, legal and records management together and create a policy. It’s not impossible. I know of a university that went from no policy to a complete, deployed policy in three months."

It takes a team effort, says Sean. "E-discovery is the opportunity for an office party. The question is: will it be before, or after, litigation happens."

Whether it’s a celebration or a wake is in your hands, dear reader. Check out the advice on the following pages, and try to determine which it will be for you.