ALM Properties, Inc.
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Build Better Relationships Between IT and Legal
In-house counsel spend a lot of time talking to a lot of key people in the company, but typically avoid the door to the IT department. In a recent blog post, “Hey Legal, It’s Time to Update Your Facebook Status to ‘In a Relationship . . . With IT,’ ” Elizabeth Fogerty of Controle, a company specializing in the management of electronically stored information (ESI), suggests that in the current climate of ESI chaos and the increasing prevalence of e-discovery requests, it is more important than ever for the legal and IT departments of a corporation to have a solid bond.
Communication, Communication, Communication
When Fogerty consults with companies on ESI issues, often the first thing she’ll do is come in and meet with the IT and legal departments. “I’ve been in meetings where everyone is going around the room and introducing themselves” to each other, she told CorpCounsel.com. “I literally make intros to people within their own companies all the time,” she said. The issue is compounded by the distinct jargon in which these two groups communicate, Fogerty explains in her blog: Legalese plus tech-talk makes a lethal combination for communication.
Data-Mapping as Preventative Strategy
E-discovery puts a huge burden on IT, writes Fogerty. To ease the difficulty when a request comes in, and “in order for a company to create a repeatable defensible process” to handle litigation in the 21st century, she suggests legal be involved up front to assist IT with creating—and enforcing—retention policies and making information more accessible. One recommendation Fogerty has for companies is “data-mapping,” a process that can be as basic as coming up with a list of the different databases and file systems in the company, along with who stores what and where.
Create a Specific Action Plan
Once the lawyers are hit with an e-discovery request, legal and IT should create a single action plan that is specific and focuses on deadlines and time constraints. Fogerty emphasizes that setting parameters at the outset saves in-house counsel time and cost associated with outside counsel. An understanding of what the legal department really needs is integral in the creation of the plan. For example, though they may think they need to see all of Employee X’s email, what they really need is an archive of Employee X’s past and current emails.
Preservation of Data
Fogerty emphasizes that individual data custodians—for instance, an employee who has control over company data—should not be replied upon to self-collect the data needed in litigation. “Courts frown on” the legal department collecting the data directly from the person involved, especially since at the outset of the litigation, they must send out “legal hold notifications” that warn the employees that the data is being collected. The legal department should make sure IT is involved in not only collecting data, but also exporting and processing it in a format that other counsel can use.
No Longer Black and White
A strong relationship between IT and in-house lawyers isn’t only necessary for e-discovery requests. Internal investigations, regulatory requirements, and a myriad of other situations require these two groups to be on the same page. Data can be collected on “everything from e-mailing and file shares,” according to Fogerty, to “content management systems, to instant messages, to social media like tweeting and Facebook.”