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Several years ago, I was the technical lead for a mission-critical application at a Fortune 100 insurance company. The application quoted and issued policies for the company's largest commercial line of business, booking revenues upward of $28,000 per minute of scheduled uptime. One day, I received a request from the chief litigator to stop automatic deletion from the system. Simple enough, right? Wrong. Complying with this request -- which, translated into IT terms, meant suspending the purge process -- would have locked the database in 11 hours, crashing the application, crippling the company's ability to sell a policy, and suspending 30 percent of the company's revenue stream.
This was my first experience with e-discovery, and a classic example of the process disconnects I see at the companies for which I now consult. E-discovery, like litigation, can be a frenzy. Most companies are simply not set up with the streamlined channels of communication they need to respond effectively.
I've learned a lot since that fire drill. Once I clarified what the legal department needed -- in this case, an attorney general's office investigation required that purged data be saved -- I got approval to determine the impact of the request, which was unknown at the time. I assembled a team of experts -- anyone who had their hands on the system -- and by the end of the day we had discovered the proposed suspension's alarming impact on the bottom line. I proposed an alternative solution: Run a tape exporting everything that would normally be purged, and report from that data. This met the legal team's needs, did not significantly affect IT's processes, and didn't affect the bottom line of the company.
Communication gaps are a persistent problem in IT, and here, "soft skills" deliver hard results. It's no secret that IT and legal speak different languages. No one is doing paper-only litigation anymore, so legal and IT working together is simply a fact of life. Clear communication goes a long way toward getting them to work together and can effectively bridge e-discovery gaps.
Communication issues typically can be categorized into two types: organizational and personal. Organizational roadblocks can be major structural liabilities to a company. Legal teams often do not know who within the IT department to ask, or they don't ask the right question. Legal must know what systems are in the IT landscape, what information each has, and who the subject matter expert is. Lack of access to this information wastes time in conversations that resemble an Abbott and Costello routine. Even after "who's on first" is cleared up for a current matter, that knowledge is often not captured for the future. You need institutional memory.
This is a key benefit of an up-to-date data map system. Used in a disciplined way, a data map can function as a Rosetta Stone between the two departments, delivering institutional knowledge that resolves major headaches next time a similar matter comes up. And there will always be a next time. With a data map your organization will be able to answer the following questions:
• Where is your company's electronically stored information housed?
• Is the data replicated? Where and in what form(s)?
• Does your company cross-reference its application data with a list of active legal holds? What about custodians who leave the company?
You need to dismantle any personal barriers between your legal and IT departments. During her presentation at the LegalTech conference in 2009, Martha Born, Biogen Idec's chief litigator, said that people who can communicate with IT and legal, and can understand and explain both, are worth their weight in gold. I couldn't agree more: The most valuable e-discovery team member functions like an emissary on a diplomatic mission. You need a liaison to navigate the IT organization who is both diplomatic and technically skilled. Honing soft skills will effectively open the lines of communication. (The author performed an e-discovery gap analysis for Biogen.)
Here are a few tips for the legal department of your organization:
1. Ask questions. For attorneys, admitting they don't know something can feel like courtroom suicide. Don't be afraid to ask IT why something won't work or how something could be done better -- it can only strengthen your position.
2. Be specific. In the IT world, everything needs to be specified, so try to frame your needs accordingly. When there are ambiguities, reduce the scope of them into phases or tiers.
3. Communicate the big picture. Often the communication from legal is on a need-to-know basis. But discussing the reason for a request could avoid a disaster and open the door for the IT team to contribute information that makes your case.
4. Tone matters. Most people, IT included, are on edge dealing with lawyers at all, let alone at work. Don't increase stress with demands or alarms. I was on a project once where an attorney used the phrase "heads will roll." The application architect was from a country where that phrase had a reality that was more than just an expression. Needless to say, that did not help the project get done faster or better.
Fair is fair. IT departments should also follow some tips in this area:
1. Be flexible. To attorneys, "everything depends." Assess what legal's actual needs are when you're faced with what seems like an unreasonable request. Can you export information to tapes, for example, instead of ceasing deletion? A cool head is key.
2. Don't speak "geek." To an attorney, a system restore tape is a backup tape, and the words "delete" and "purge" are synonymous. Use familiar terms to help them understand the complexities of executing requests.
3. Be patient. A willingness to answer questions will build trust and facilitate realistic expectations.
4. Be helpful. IT people love to dazzle with their smarts, but being helpful is the way to get recognized, get rewarded, and get ahead.
Finally, now that you've bridged your communication gaps, you need to ensure that the bridge stays clear. Even small amounts of litigation require some automation, and you're probably already using one or more applications to manage e-discovery. A well-defined process will prevent spoliation when, say, an employee with relevant ESI leaves the company, and his or her equipment must be redeployed. The best way to accomplish this is for the legal team to publish an automated custodian "watch list" to the IT team directly from the legal hold management system.
When the e-discovery gap analysis for Biogen Idec began, the IT and legal teams were tracking on-hold employees with spreadsheets. Legal team members often added custodians to the watch list without knowing if the employee was still active with the company, or had had a name or job title change. The list was periodically updated manually by cross-checking all applicable systems. The process was labor-intensive but essential for preserving information.
Now, Biogen's legal team uses e-discovery workflow management software that integrates with human resources systems, matter management, and collection tools to manage their e-discovery life cycle. Their IT team has limited access to the system to cross-check their work orders with active holds. When employees are exiting, the IT team checks the watch list found in the e-discovery management tool Exterro Fusion to determine their hold status and either release their equipment for reimaging, or use Guidance Software EnCase to kick off the collection process. It takes only a few hours, the critical data is preserved, and there is minimal downtime for the equipment itself. This provides a huge reduction in risk at a minimal interruption in operations.
E-discovery is full of traps and switchbacks. Address it proactively with investments in the people and systems that make collaboration between IT and legal functions interface smoothly. Even small gaps in e-discovery processes can result in operational inefficiency, fines, sanctions, and reputational damage. Companies can effectively address e-discovery requirements by building collaboration and repeatability into their processes using the tools available, from data maps to savvy employees, from software to soft skills.
Peter Caradonna is the owner of Breakwater E-Discovery Consultants, which provides e-discovery services for Fortune 500 companies.
