Making E-Discovery the New Deal

There’s no way around it: Legal e-discovery is a 21^st century, first-world problem. I’m pretty sure there’s no one in a village in sub-Saharan Africa wondering if they are adequately protected from civil litigation. It’s only a reality in today’s multi-faceted, multinational and multi-problematic business world.

Which is still a pretty big deal.

Just to get started, I’ll add a little “dictionary.” It will come as no surprise that I stole this from the net:

“The processes and technologies around e-discovery are often complex because of the sheer volume of electronic data produced and stored. Additionally, unlike hardcopy evidence, electronic documents are more dynamic and often contain metadata such as time-date stamps, author and recipient information, and file properties. Preserving the original content and metadata for electronically stored information is required in order to eliminate claims of spoliation or tampering with evidence later in the litigation.

“After data is identified by the parties on both sides of a matter, potentially relevant documents (including both electronic and hard-copy materials) are placed under a legal hold—meaning they cannot be modified, deleted, erased or otherwise destroyed. Potentially relevant data is collected and then extracted, indexed and placed into a database.”

Basically, what that means is that electronically stored information is raw meat, but it has to be agreed upon ahead of time raw meat. So choose your storage strategies wisely.

The other thing about e-discovery is that it is usually preceded by an information governance strategy. Here’s how Gartner puts it: “Information governance (IG) is the specification of decision rights and an accountability framework to encourage desirable behavior in the valuation, creation, storage, use, archival, and deletion of information. It includes the processes, roles, standards, and metrics that ensure the effective and efficient use of information in enabling an organization to achieve its goals.

As compared to e-discovery, information governance as a discipline is rather new. Yet there is traction for convergence. E-discovery—as a multi-billion dollar industry—is rapidly evolving, ready to embrace optimized solutions that strengthen cybersecurity (for cloud computing). Since the early 2000s e-discovery practitioners have developed skills and techniques that can be applied to information governance. Organizations can apply the lessons learned from e-discovery to accelerate their path forward to a sophisticated information governance framework.”

The thing (maybe things) about e-discovery that complicates the water are: (a.) it’s still relatively new; (b.) it’s totally foreign to all but the chosen few in the legal counsel’s office; and (c.) it’s really hard to do. The new rules (I still call then “new” because very few people understand there have been massive rule changes) call for a complete reorder of the civil litigation process. And the processes under which businesses now operate—mobile workforces, BYOD, cloud—stir up more silt to make the navigation more treacherous than ever. OK. Enough with the sailing analogies. But it’s apt: E-discovery has become a major check-list item on every corporation’s to-do list. And the sailing is heady indeed.

We often talk about how knowledge work is a combination of “people, process and things.” That pretty much covers the waterfront. (Oh, sorry, I promised no more sailing references.)

But just ask Accusoft. They write in this paper about the “people” part quite eloquently (if not a little aggressively). They say, “Go full or go home. Research shows that when users can’t perform every required task of their workflow within the designated application, they start working around the application. They begin performing some tasks on hardcopy or through email attachments, or engage in oral discussions that really should be documented within the workflow.” Those dastardly water-cooler talkers. “They begin losing track of document versions and the discussion flow, on top of exposing sensitive legal documents to greater risk or theft or misuse.”

There’s a lot of truth in that. Workers who have become accustomed to firing off emails and tweets and insta-whatevers are probably more likely to rely on social tools to do their work than the age-old “document” relics that linger still in corporate information repositories. But listen to this: “The ‘petrification’ of legal documents to TIFF format for discovery review was aptly named—the practice is officially a fossil. Effective review demands access to documents in their native file formats, but the viewer technology in many applications still constrains the user to a short list of supported file formats.” Meaning, one has to assume, that embedded technologies are a hindrance to current work, and cause more harm than good. “Reviewers wind up having to convert files just to review them, wasting costly time and potentially reducing the document’s discovery value in the process.”

They also point out these as guidelines to creating an effective knowledge-sharing base:

• Mobile device support that’s nonresponsive…or nonexistent. When reviewers can perform review tasks at client sites, the courthouse, or wherever else they may find themselves, they’re more productive. But not just any mobile support gets the job done. Unless the viewer responsively adapts both the document display and the review toolset to optimize the experience for the device size, users may decide that trying to review on their phones and tablets is more hassle than it’s worth.
• Insufficient document safeguards. The downside of mobile access is that it exposes documents to greater risk of misuse. Documents must be encrypted both on the server and in transit to devices, and administrators should have the option to stamp a watermark on every page. But more importantly, documents must be displayed in a way that does not require that an actual copy of the source document be sent through the Internet.

Nexidia, also represented in this paper, addresses the “people” part of the equation in a unique way, I thought. There is no question that those “water cooler” denizens play an important role in the dispersal of information in a (typically small) organization. But, as we’ve noted, globally diverse, time-zone handicapped, sometimes language-barriered organizations can have a challenge meeting that fundamental need. Nexidia thinks it’s a challenge more than an obstacle: “Financial institutions and other firms subject to heightened oversight are wise to implement rigorous systems to ensure the compliance and legality of all employee activities. While much of the employee activity is conducted digitally—through emails, trading systems and even personal solutions such as texting—there is still a great deal of activity that occurs through our oldest and most traditional form of communication: the human voice.”