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The 1% Solution
Why Your Business is Not Prepared for E-Discovery

It may not be a strictly scientific finding, but nobody argues that only about 1% of businesses are FULLY prepared for e-discovery. 1%—that’s statistically zero. Sure, there are the regulated industries that routinely manage their records down to the last period of the sentence... that’s a Thursday for them.

But the VAST majority of businesses have not adequately NOR proactively prepared to respond to an e-discovery request.

Let’s get some housekeeping out of the way: The concept of “e-discovery” is about three years old, depending on how you date it. In December of 2006, the “Federal Rules of Civil Procedure” were altered in a sweeping series of revisions to, basically, say it’s OK for one company suing another to ask for “electronically stored information” (ESI) related to the matter at hand as part of the set of evidence.

Prior to this, it was common for a “discovery motion” to entail reams of paper documents and boxes of spreadsheets. But there were no clear guidelines about how to produce evidence that was created in and only exists in electronic form... and how to navigate the murky waters that ensue.

Well, that all changed abruptly in 2006 when the rules were revised. And it’s funny to say it was “abrupt,” because here we are in 2009, and for many the three-plus year-old rules have still not sunk in.

“Perhaps the biggest changes in the last few years, especially with the FRCP rule amendments of 2006, are the notion of ESI and that organizations are realizing that ALL content is discoverable... not only the structured documents,” starts Bassam Zarkout, who is on the Technical Advisory Committee at RSD. “Data stored in electronic archives and data warehouses are also ESI and must be subject to the same controls of records management and legal holds as their unstructured brethren.”

OK. Maybe a little more housekeeping. Back in the old days, when “ESI” meant spreadsheets, there was no such distinction between “structured” and “unstructured” data. ALL data was structured (in the form of Excel files or maybe ERP data and such). What we now call “unstructured” content was considered “letters” and “contracts.” If these were caught up in a discovery motion... start up the trucks and warm up the forklift.

Then, things changed. Interactions between customers and suppliers started to take place in “email threads.” Transactions began to occur in “collaborative environments,” instead of the confines of dusty file cabinets and three-ring binders. And the massive volume of information created, information stored and information distributed overtook the established norms and routines of business, and entered something new. It became digital.

I’m not telling you anything you haven’t heard before. Hell, my high-school kids are more plugged in than you are, I can guarantee that. But the courts began to get wind of it, and—being the courts—slowly started to take interest.

“In the legal space, things go by evolution, not revolution,” points out Dr. Johannes C. Scholtes, chief strategy officer for ZyLAB North America LLC. But it’s evolving, Johannes (or Jan, as he’s known) says: “People are getting educated on the subject of e-discovery. Not only specialists, but also counsel AND judges. The legal society as a whole is beginning to understand that there’s more to life than TIFF documents.” He describes a recent ruling regarding the acceptance of ESI metadata (information hidden with a document that describes its attributes). As he explains, it’s not so much that the metadata hidden within electronic documents is now valid as evidence; it’s that some judge in Atlanta knew enough to ask about the metadata in the case! That’s one well-educated barrister, and he won’t be the last.

Annie Goranson, Symantec’s discovery attorney, agrees with Jan. “There’s a lot more involvement by both outside and in-house counsel in the technical side, and the judiciary is driving that. It’s now a requirement that counsel understands how systems operate. For example, in a case in Florida, in-house counsel was sanctioned for ‘misrepresenting’ that they didn’t have access to metadata when in fact they did. It was just a lack of understanding of the process,” Annie says. “Courts are becoming impatient with counsel who don’t take the time to understand what’s going on. There’s definitely a renewed interest in the legal community in how the various technologies work.”

“We IT professionals know all about metadata, but until two or three years ago, judges and legal counsel did not,” adds Jan. He describes another example where a judge asked for the equivalent of a “fuzzy search.” The parties weren’t asked to produce only the exact match with the searched words; they also had to provide documents that had words that were “kind of similar” to the words initially agree on in negotiation.

It’s not your father’s litigation environment. Wait... I’m not saying your dad was sued or anything... oh, you know what I mean.

Information Makes it Right
“This all boils down to the fact that 2010 is going to be the ‘Year of Information Management,’” says Sean Regan, senior manager for the Enterprise Vault at Symantec. It will be critical to have information pre-collected, he says, so you can perform “early case assessment.” “Rather than constantly reacting after the fact,” Sean says, “companies that have information management platforms in place will know how deep the rabbit hole goes BEFORE they end up in court.”

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