Today’s eDiscovery Requirements: Are You—and Your Clients—Prepared?
In the past 18 months the landscape of ediscovery trends and legislature has changed significantly. The courts have begun to mandate discovery of data once thought too burdensome to access. Change in this regard has been reflected on the state level. For example, it has been more than a year since the California eDiscovery Act (AB5) was signed into law on June 29, 2009. This act requires disaster recovery data, aka backup tapes, to be treated as a standard source of search and discovery efforts.
Also contributing to the shift in ediscovery requirements around backup data, this past year Judge Scheindlin, of the well-known Zubulake case and more recently the Montreal Pension Committee, put forth the opinion that companies must “preserve backup tapes when they are the sole source of relevant information or when they relate to key players, if the relevant information maintained by those players is not obtainable from readily accessible sources.” This is an opinion that the judge reinforced at the recent Georgetown eDiscovery Institute conference in November 2010. Recent articles in both the Wall Street Journal and the National Law Journal have also documented technology enabling the access to legacy data, further supporting the court rulings around the disclosure of data contained in legacy formats.
As a result of this changing landscape, many outside counsel have advised their clients to consider electronically stored information (ESI) policies, determine how ESI is stored, and ascertain whether it can be produced when required. Have litigants taken this advice seriously? Are they prepared for litigation? Have they taken steps to understand their data management and destruction policies? The answer is a resounding “maybe, maybe not.”
With ESI reaching unprecedented volumes, it is no easy task for legal teams to find the proverbial “needle in the haystack.” However, new regulations, including the aforementioned AB5, have resulted in judges who are more educated on ediscovery best practices and discovery technology. Therefore, it is inevitable that counsel and their clients become proactively involved with their IT departments in setting policy on how ESI is managed and start down the path toward litigation readiness. This collaboration between IT and legal will be crucial in avoiding fines and sanctions from the courts.
The key to implementing a defensible policy with regard to an organization’s data is to first understand what information exists and where it is stored. Many firms are implementing tools, such as email archives, to better manage their data. However, the volume of unmanaged data is still significant. Take into account files on corporate servers, historical email on old backup tapes, or even data on users’ desktops. Having a view into this content has been next to impossible as this data is locked away in proprietary environments (email servers and backup tapes) and is constantly changing and growing. IT personnel supporting legal teams must become more proactive and understand the content of this ESI. They have to stand ready to produce the data when it is needed. A proactive discovery effort will help determine what and where sensitive data exists.
Search tools have become more sophisticated. They can now easily integrate into corporate repositories of stored data, like disc storage or backup tapes, and turn piles of unknown data into discoverable records. This has made the effort of proactively discovering stored data feasible. Leveraging these tools makes unmanaged ESI discoverable and delivers knowledge to counsel and other departments within an organization. Armed with this knowledge, legal teams can deploy policies that prepare them for future litigation.
Similar to the success of the Internet, where search technology propelled the web into the valuable tool it is today, ediscovery technology will allow corporations to leverage the information assets hidden in stored data. Before Google or Yahoo, web content could have lived for eons without being found. Now if web content is published today, tomorrow it will be found by anyone performing a related search. Data cannot hide on the Internet because of the power of search technology.
In law firms and corporations the same challenge exists. Discovery of content is inevitable. Legal teams understand that it is better to know what exists up front and become more proactive with respect to the overall data assets. Making data discoverable, following in the footsteps of the Internet, is no longer a complex challenge. Technology behind ediscovery has become far more robust and deployable, and is now often available via Internet subscription or software-as-a-service models that require little to no upfront investment or hardware. Search and discovery can now keep up with the volumes of data that are continually produced along with the massive stockpiles of historical content, regardless of format or content. Just like all new technology, the market entry price starts high, but over time the demand and volume dictate the right price. This has happened with ediscovery technology—the market has seen the overall efficiency and cost of complex enterprise data discovery balance out and become affordable.
Deploying search technology has been simplified. High-speed, efficient enterprise indexing is now a reality. With indexing nodes now deployable within the corporate infrastructure, something IT organizations are now deploying, legal teams can now enforce policy. Policy engines consist of canned queries that are executed on a regular schedule. Specific files related to key corporate intellectual property, sensitive keywords within users’ email communication, technical specifications related to a new product under investigation, and so forth can be proactively queried, and relevant data can automatically be delivered to legal for further action. No longer will legal be in the dark: they will have the information they need to make the right decisions for their organization.
Given industry trends, the advent of search technology, and the cost effectiveness of data discovery, proactive litigation readiness is now possible and quickly becoming a best practice for organizations facing litigation. Deploying technology across all enterprise data environments is the only way to achieve a litigation-ready environment. In today’s climate of regulations and meticulous oversight, it is imperative that steps be taken toward litigation readiness, for small and large organizations alike. The recent laws, opinions, and articles should be a sign of things to come, and taking a proactive step now will avoid expensive and painful ESI collection fire drills in the future.Jim McGann serves as Vice President of Information Discovery for Index Engines. He has extensive experience with the ediscovery and information management and is currently contributing to the Sedona Conference Working Group addressing electronic document retention and production. McGann is also a frequent speaker for industry organizations including ARMA and ILTA, and has authored multiple articles for legal technology and information management publications.
© Copyright 2011, American Bar Association.