Technology Lex Index

Given the explosive growth of electronic information in corporate America, managing electronic discovery is increasingly a challenge for corporate IT departments, in-house and outside counsel, each of whom are stakeholders. In December of 2006, the Judicial Conference of the US amended the Federal Rules of Civil Procedure (FRCP) to clarify the roles, responsibilities and discovery obligations of the various parties to litigation. The amendments, for the first time, made specific reference to electronically stored information, or ESI, as it is now commonly known. The changes in attitudes toward e-discovery are noticeable and the amendments have, without question, helped create an unprecedented level of dialog and collaboration to understand how electronic information is created, used, managed and disposed of in the corporate environment.

Why, then, have the amendments, intended to reduce confusion, also introduced a level of complexity to the e-discovery process that has left a lot of people scratching their heads?

For example, corporate counsel in a defense posture is keyed in on everything from creating corporate data maps to handling multiple and complex litigation holds, as well as establishing repeatable and defensible guidelines for discovery. What happens the following week when the storage administrator retires a key server and implements his data consolidation strategy? How good is the data map then?

Records retention managers have also been significantly affected. For years, they have been seen as silent corporate operatives who had murky roles and dealt with boxes of old documents. Today, nothing could be further from the truth. They are on the front lines of protecting an organization from a data management policy perspective.

Another role that has seen significant evolution is that of the “storage administrator.” Corporate data storage administrators are IT personnel whose roles are largely characterized by their knowledge of an organization’s data growth and proliferation patterns – key factors that allow them to make recommendations as to how, when and if an organization’s data management hardware and associated software platforms need modification or change.

Another driver is the evolution of technology for e-discovery to serve both proactive and reactive use cases. The vast majority of matters today are addressed in a reactive fashion with a mind to quickly address pressing, active concerns that demand rapid retrieval of responsive ESI for early case assessments, meet and confer and other matter-specific requirements. However, the future is clear in that there is a need for consistent, repeatable and targeted e-discovery processes that can also be deployed across a company, creating an “e-discovery ready,” proactive environment.

Therefore, the answer may lie in the fact that while the amendments impose obligations on the parties, they don’t specifically state how one should go about fulfilling them. When it comes to corporations today, the old silo-based information management paradigms will not work when it comes to information discovery of any kind, for any reason. The bottom line is: litigation, storage management/data consolidation, records retention, regulatory responses, internal investigations, information security initiatives, personnel policy management, business intelligence, data mining, compliance and monitoring are all effectively subsets of what we call “e-discovery.” This new paradigm of e-discovery subsumes many previously compartmentalized departmental initiatives that are under the auspices of legal, IT, records management, HR and finance. It is predicated on the degree to which an organization has information access and the ability to perform effective data classification. In short, companies should be able to leverage enterprise data for multiple business needs from a common underlying information access and classification platform.