It’s Complicated:The Real Costs of Risk and Discovery
How E-discovery is Changing the Organization

“That’s been a big change. There’s a much greater awareness of technology, particularly search technologies, on the part of external counsel,” Ted says. And even after a meet-and-confer has resulted in the agreed-upon playing field, it’s not the end of the game. “You can’t lie. Attorneys are, at the end of the day, officers of the court. If something comes up in litigation that is relevant to the case, but it wasn’t mentioned in the pre-trial work, you still have to bring it to opposing counsel’s attention.” Technically. But in reality, “people don’t ask many questions once the search protocol is negotiated,” he admits. Let’s put it this way: If you find out something that late in the game that you should have known about, don’t expect a bonus envelope at the Christmas party.

It’s just another example of a phenomenon we’ve often addressed in the KMWorld White Papers. We find ourselves at a unique point in history where we’re “in-between” trends. Much as in the course of natural history, when outside forces come into play that alter the environment, the citizens of the era have to adapt and, in fact, evolve into new shapes, breeds and ability-sets. And the one that we’re feeling tugging at us from the ooze right now is the increasingly complicated role of IT in the organization. We’ve heard of IT being pulled into the business setting in order to accomplish certain elements of various departmental business processes. Now they’re being trained as paralegals (!) in order to shore up the weak technology foundation found in the typical legal department. “That’s definitely true,” agrees Ted. “There’s a much more acute understanding of the real needs of the business on the part of IT than we’ve seen. But it cuts the other way, too. Attorneys have been forced by discovery requirements—many of which are basically technical requirements—to adopt program management-type approaches to the discovery process.”

I suggest that perhaps there’s been some resistance to this trend? “That’s exactly right,” says Ted. “Most attorneys did not go to law school to become effective process managers. But I will say, when you come across these younger attorneys who are two or three years out of law school... they’re different. They respect technology. They’re more tech savvy. And they’re not afraid to roll up their sleeves and tackle technical process issues.”

Over There
At this point in our chat, Ted suggests  another area that should be examined is how this all fits into an international perspective. “Sure,” I say, “please describe that.” “OK,” he laughs. “Here’s the short answer: Not well at all.”

In other common law nations, such as the UK and Australia, it works pretty well. “But where we starting to see real resistance to our broad-based discovery model is from the continental European countries,” Ted begins. “The issue that comes up time and time again is privacy, and employee privacy in particular. For multi-national businesses, it’s a rock-and-a-hard place problem. If you talk to their external counsel based in the US, it’s not so bad. But the level of antagonism and disbelief that comes from the in-house counsel based in Germany, France and Italy that they have to produce this level of information is palpable. It’s a completely alien concept to them,” says Ted.

“For example, if you use a company-owned computer in the US to create content of any kind, in almost every case that content belongs to the corporation. In Europe, it’s the reverse. The presumption is that it’s yours unless it can be proven otherwise.” And that’s the heart of the problem with the multinational discovery issue right now, especially when you’re talking about email. “So many companies just won’t deploy discovery software, so from our perspective that’s what you call a sales impediment! But for those companies that do recognize that there has to be some kind of cooperation, it requires a much more complicated discovery response. They’ll do a lot of the collection and review in country, before even exposing it the opposing side or the court in the US. They basically do a culling down in Europe of the content before delivering it in a very pared down, sometimes even redacted form. It’s hugely burdensome.”

And complicated. And that brings us back to where we started with this article. Life is a lot more complicated than it used to be.