Back in March of 2015, we wrote about why eDiscovery, one of the legal profession’s most powerful tools, is also among the most poorly understood by attorneys.
Almost a year later, not much has changed. Here’s part 2 of why eDiscovery is still a mystery to attorneys.
It’s critical for organizations to easily access documents, emails, and even text messages. If those forms of information are deleted without being properly preserved, they could be lost forever. This poses an issue when a company must provide these records to aid regulatory compliance, a legal case or an employee dispute.
There have been countless examples of how an archiving system has affected a company, both negatively and positively. Easily accessing archived documents, emails and messages takes the guesswork out of certain situations and will ultimately protect your company if used correctly. Greg Arnette, founder and CTO of Sonian, a pioneer in cloud-powered archiving, has identified nine situations in which having records accessible, or not having records accessible, has largely affected companies and employees.
Lack of Understanding that ESI (electronically stored information) is More Than Any Other Office Document
YouTube videos, Facebook and Twitter posts have been used as evidence. Voice mail, calendar and journal entries, and instant messages also fit the bill. As Kentucky attorneys Michael Losavio and Jennifer Hans points out, ESI can be stored just about anywhere – including such places as hard drives, RAM, cell phones, PDAs, flash or thumb drives, and even MP3 players.
Fear or Inadequate Knowledge of ESI (Remember ESI can make or break your case)
It’s a lesson California-based outdoor furniture supplier Creative Pipe had to learn the hard way. After the company allowed opposing counsel to use an untested keyword search tool that unearthed 165 documents of privileged data during the discovery process, the court determined Creative Pipe had waived privilege on those documents because it had not taken care to protect them. Creative Pipe’s opponent could use any of those documents as evidence against Creative Pipe.
Non Pro-Activeness to Approach ESI in the Right Manner
The best approach to ESI is a proactive approach. Attorneys must understand that ESI will avoid errors like those made by Creative Pipe and others who have been in the news the past few years, it is not wise to put ESI archiving/eDiscovery policies on the back burner. Figure out where all of your ESI is, and how or whether it can be quickly accessed, then address how any new ESI that comes into the system will be managed. Waiting until you have an actual eDiscovery request or regulatory audit notice in hand before deciding what to do is just seeking for trouble.
Lack of Best Practice
Best practice is crucial. Developing best practices is the key to navigating the complexities of global eDiscovery matters.
Lack of Procuring Right Technology and Tools
The right technology can make all the difference. Like any software or service, eDiscovery solutions come in a variety of shapes and sizes. Whether it’s an appliance, a hosted solution, or a custom, site-specific implementation, you must shop around to find the one that best which meets our needs.
Neither IT nor Legal Should Tackle eDiscovery alone.
Neither IT nor legal should tackle eDiscovery alone. That’s why it’s important to teach the departments of Attorneys how to work together to accomplish eDiscovery goals. Some companies are looking to a new breed of IT professional, who reports up through the general counsel’s office to lead the efforts. Others take a team approach, with representatives from each group providing input at the planning and implementation stages.
This post was contributed by Jai Santosh, HR Team Lead.