Thursday, October 7, 2010

How Technology Came to Rule the Legal World

By James D. Shook, Esq.
Director of E-Discovery and Compliance
EMC Corporation

Ten years ago, few people, even lawyers, knew much about electronic discovery (e-discovery)—the process of finding, preserving, processing, and producing electronic information that is relevant to a legal dispute. Today, it’s difficult to find anyone who is not at least conversant with the concept, thanks to many high-profile cases and countless articles in both IT and legal journals. And yet even with all of the changes that we have already seen, the next ten years are likely to produce even more.

An extra “e” transforms “discovery”
The U.S. legal system requires that each party in a civil dispute provide the other party with all information, both good and bad, that is relevant to the case. This part of the litigation process is called discovery.

In the “old days”—which in technology terms means before 2000—the discovery process focused primarily on paper documents such as contracts, notes, files, and correspondence, including letters and memoranda. As businesses began using more technology, especially e-mail, the majority of that information shifted from paper to electronic format, and e-discovery was born.

The rules of discovery never specifically included—or excluded—electronic data, creating inconsistencies and confusion. To address this issue, the Federal Rules of Civil Procedure were amended in December 2006 to specifically include electronic data, defined as electronically stored information or ESI. Although the FRCP only governs disputes in federal courts, it strongly influences state courts, and the rules spread quickly.

Almost overnight, IT systems such as e-mail servers became concerns for lawyers, many of whom are notoriously techno-phobic. Organizations that failed to meet their e-discovery obligations faced the risk of embarrassing and costly sanctions from the courts. Simply collecting and preserving everything was cost-prohibitive. A frequently cited study found that it costs almost $20,000 to have lawyers review a single gigabyte of data (which may seem reasonable since 1 GB represents about 75,000 pages). Extrapolating those costs across hundreds of gigabytes, or even a terabyte or more of data, scared most organizations—and they started looking for a better way to manage both the e-discovery process and their electronic information.

E-discovery strategies at work, today
Organizations that lead the way in e-discovery best practices are attacking the problem in two ways. First, by managing data more centrally and efficiently, they can responsibly delete data that has no value, or which they are under no obligation to retain. Not only does this practice improve the e-discovery process, but it also creates significant savings for storage, backup, and personnel costs.

The second part of this strategy is to bring some—or all—of the e-discovery process in-house. To do this, organizations are creating cross-functional teams that include both IT and Legal, and then deploying technologies that enable fast and efficient in-place search and collection of their ESI.

Yet even today there are many organizations that have done little to address these requirements. Because e-discovery is not a voluntary process, many unprepared organizations perform “faux e-discovery”—they attempt to meet their obligations, but in reality miss significant amounts of relevant data. In doing so, they are taking on significant risk, without understanding or acknowledging it. Other organizations that fail to prepare are forced to turn to expert (and expensive) third-party vendors, frequently spending several hundred thousand to well over a million dollars to respond to a single case—without any ongoing benefit.

More data, more technologies, more challenges, more solutions
The continuing explosion in the amount and varying types of data will continue to significantly impact the e-discovery landscape. With studies noting that we will have 35 zetabytes of data created by 2020, even good processes may be totally overwhelmed by the sheer volume.

In addition, technologies that enhance the speed and efficiency of communication and businesses processes continue to be developed—and they are usually not e-discovery-friendly. Social media technologies such as Facebook and Twitter are further blurring the line between personal and business data, which can be difficult for organizations to locate and preserve. Cloud computing can put a company’s data in the hands of a third party, sometimes in a different country or jurisdiction, which also makes e-discovery more difficult.

But technology is also likely to provide solutions, such as intelligent filtering and review of data. There are tools today that can classify and determine whether documents are relevant to a case based on their similarity to other relevant documents or other criteria. But those technologies are new and complex, and their acceptance in actual court proceedings is not assured.

With all of these issues on the horizon—and certainly more that we cannot yet predict—the next 10 years in e-discovery will be every bit as interesting as the last.

As director of e-discovery and compliance at EMC Corporation, James D. Shook, Esq. works with customers to help them solve challenges related to e-discovery, compliance and privacy. James is a long-time member of The Sedona Conference, a well-known legal think tank, and is an active contributor on several of its committees.

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