Who's NOW In Charge of Information?

The balance—and I could call it tension—between the corporate legal counsel department and their IT/technology counterparts has never been greater. Nor has the need for cooperation between them ever been greater.

That was my opening gambit in this month's KMWorld White Paper opening article. It is not unknown to me that the role of IT versus ("versus" seems a little strong, but I'll get to that in a minute) the legal side of the house has ratcheted up a few notches in recent years. In past years (all of five years ago) it was IT's job to collect and "high-level analyze" (meaning "sort") the various documents, email, financial content, etc., and then be a good boy and give it to the kind attorney who knew what to do with it. And for a while, that seemed like a good plan. IT had plenty to do anyway, and legal was a league of specialized gentlemen that would "just take it from here."

I call it the "throwing it over the wall" era. That time has passed, ladies and gentlemen, and the revolving door of "who's in charge" when it comes to civil litigation, legal disposition and even criminal forensics has turned around.

As usual, I found some experts in the field to inform me, because I am a neophyte to this area. Pretty much like all the other ones. I spoke with AccessData's CEO Tim Leehealey and Jay Leib, chief strategy officer for kCura.

It is not unusual during the interviews for these monthly articles for the parties to politely agree and also politely disagree. This conversation was no different, except for one thing: they entirely agreed that the roles of IT and the roles of the legal departments in corporations—especially big ones—have been utterly altered. And guess why? Technology.

My opening question was, as always: What's new? In this case, we went through a period of massive change (here in the US and abroad as well) but mainly starting in early 2006 with the FRCP amendments. Please educate me on any more recent decisions/findings/updates that have had an impact on e-discovery procedures and practices.

Tim answered first, by clarifying a little bit about how his company views the market landscape, and its opportunities. "The messaging of our company is about investigation, and the many facets that takes. E-discovery is simply one of them. The difference between e-discovery and data forensics is really subtle. But when you talk about ‘forensics,' you're mainly talking about criminal discovery. When you talk about ‘e-discovery,' you're probably talking about civil litigation discovery. But it's really only the spectrum of the discovery, and the emphasis on the workflow that determines what is considered evidence. For example, if you look at the softwaxre applications used to do those two things, you'd say ‘Wow, these are very different. They don't even fit the same market.' But, a software developer would look at them and say: ‘They are exactly the same, just with a different user interface!' So, it's a matter of perspective."

I get it. The difference between civil and criminal discovery is one of depth. The products these guys sell can do both. It's about the workflow, and the hoped-for end result. The only meaningful difference is the user interface. Flip one bit, and you got the same product, from a developer's perspective.

Jay jumped in: "Yep, where it gets interesting is downstream, after the data has already been prepared and ‘cut up.' It could be documents, emails, structured data... the important thing is to help the professionals who have to make decisions about the data... lawyers, paraprofessionals, support staff. These are mostly the bread-and-butter cases that just have a single custodian in charge, but they also range up to the cases that have hundreds of decision-makers and thousands of documents."

But what also happens, they both told me, is a cross-over of interest. Forensic accountants have to get to the email that refers to the spreadsheets. Legal counsel needs help to wade through the vast information stores. Investigations take many different paths during their duration. It started to get interesting, from an organizational viewpoint.

The Changing Roles

So I got right to it: To what degree, I asked, have the roles within the organization—legal, IT, line-of-business, executive suite—shifted in terms of their impact on e-discovery, and their relative importance as far as their influence over e-discovery efforts? To me, it seems like the roles that IT and business and legal play have subtly shifted.

Tim (correctly) jumped on that: "That dynamic you suggested will be the most significant change in the industry over the next several years. We think of it this way: forensic investigations gather the data from upstream. The analytics companies process it. The reviewers apply even higher analytics so finally decision makers can make decisions. But these people never sat down and said to each other, ‘Hey, you do this job and I'll do that job.' It's more a function of the tools they use. It's the technology tools that have dictated the various roles," he said.

"Five years ago, IT people gathered data, and then passed it off. They threw it over the wall to some analytics company, which threw it over another wall to an investigation company, who then threw it over to the final decision-makers. But today, the IT people WANT to do more. And in-house legal counsel wants to do more also. Nobody wants to hand it over to a third-party that is going to charge through the nose," said Tim.

"It's because the tools have become more powerful," Tim argued. "They allow you to gather, collect and analyze from beginning to end. We're seeing major companies where the IT department literally does it all, from beginning to end. Only at the very end does legal jump in to make the final decisions... because they don't want to do it until they are absolutely forced to," he laughed. "Legal is willing to concede discovery to IT, and IT is willing to take it on, because it's a big value-add they can bring to the company. Because the tools are better, this dynamic of throwing over the wall is totally disappearing."

So, I wondered, what has changed so dramatically to create this utter dissolution of the usual pattern of "collect/analyze/decide" spectrum?  Is e-discovery a noun or a verb? In other words, should companies be preparing for "e-discovery" as an ongoing, constant activity (that's the "verb" part")? Or is preparation for e-discovery OK to do only when forced to (that's the "noun" part)? And why? Is it an economical issue? A risk issue?