E-Discovery Meets Web 2.0

The more I think about the electronic discovery process, the more it seems that we're operating under an outmoded construct, particularly in how we harness information technology.  After all, is not the evidence that ultimately drives the story.  While litigators are certainly wont to frame it to a particular result, the route one takes is ultimately constrained by what is discovered, whether that be documents, photographs, video, lab results, or eyewitness testimony.  The entire litigation, including expert testimony, demonstrative evidence, and closing statements must be based on that discovered rather than manufactured evidence.  Nonetheless, the IT infrastructure we set up assumes what we will find.  Our data calls typically survey the usual suspects (i.e., management types) that supposedly know where everything is and who supposedly knows what. 

Unfortunately data is not usually created from edicts from the top.  Instead, mountains of information are generated the masses, information that may never flow up the chain but is instead consumed horizontally across the organization.  And this data is not just trivial gossip or discussions about minor matters.  Instead, the information may reflect the basis for critical contract decisions, the generation of a key piece of intellectual property, or evidence of harrassment.  Employees are often empowered to make important decisions that affect the life of a company.  While most organizations relegate the dispositive actions of approving contracts, hiring and firing, compensation decisions, patent applications, and like to certain individuals, the basis for those approvals, which may be little more than "I concur", are found far down the pecking order.

In typical litigation, the basis for a decision and those who contributed to it may be more important than the actual decision.  The basis for a wrongful termination complaint, for example, make sense until light is shown on all the e-mail exchanges that led up to a person's termination.  In this world, one needs to gather up all the evidence.  However, typical litigation support technology assumes a significant amount of structure.  Typically, electronic evidence was collected from a variety of sources, printed out or converted to a TIFF image that was then Bates numbered.  No attempt was made to actually capture the structure in which that electronic document actually existed.  Instead, that web of relationships in space and time must be laboriously pieced together by attorneys at a later date.

In many ways, this is how data in an organization had been typically arranged.  Structure was imposed, and it was assumed that any data that didn't fit that structure wasn't important and was either discarded or relegated to those vast realms of file shares that no one ever dares to look at again.  We dump data there, but once it's used for that initial purpose, it might as well exist in never never land.

That's what the whole Web 2.0 concept was meant to address for the Internet, to link together content, particularly user created content, using standard tools but with a loose structure to allow the content to define structure.  We see this with sites like MySpace, SlashDot, and del.icio.us.  Within the corporation, this growth of content relationships has grown slower but is being urged on by indidivuals such as Andrew McAfee and Dion Hinchcliffe through what they herald as Enterprise 2.0.  For the enterprise, this means a recognition and content cannot always be structured from the top.  That useful data is created at all levels and often needs to be shared with others.

This same challenge is presented with electronic evidence.  Litigation technology must be standardized but also be able to form around the structure of the evidence in its natural environment.  While preservation concerns may dictate that the data be moved or copied to a litigation archive, the technology's ability to first discover that data while in its natural state and then replicate that structure in the litigation repository is critical to effectively harnessing the technology to actually help drive the case rather than just a dumping ground for evidence to be sorted out those.  Of course, effective content analytics to help expose relationships and identify relevant and privileged information would also help, but it is in that initial collection where organizations have the best opportunity to really exploit the benefits of technology by letting it define the structure based on the evidence rather by a presupposed structure envisioned by a technology vendor.

Legal Holds: Are They Effective?

In its article, "Structuring a Legal Hold," eDiligent, Inc. provides a useful, but rather high-level, framework for implementing a legal hold.  Nonetheless, are we really operating with today's technology in mind.  People no longer store information in neatly organized file folders that map directly to potential issues in dispute.  For example, customer communications can be stored on e-mail server, in a PST file on an employee's laptop, in Word document on file server, in a Groove workspace, on a thumb drive, or even, perish the thought, on a hand-written note.  Moreover, the a company's organizational structure in no way dictates how data is stored.  With a few exceptions, there is no centralized repository for official documents.

It seems the biggest influence on the nature of a legal hold will likely be the nature of the litigation.  If it's a personnel matter or a dispute with a particular customer, then the scope may be relatively small.  Just interview the individuals who have had contact with the individual or were involved in the customer matter and find out how they stored their data and who they talked.  If it's an intellectual property matter, every PC in the company may need to be investigate.  The challenge for many litigators is finding that needle in the haystack.  For those involved in e-discovery, the first challenge may be which haystacks should one look.  More and more, it's not always clear what data is out there.  For example, machine generated data has a life of its own.  If that becomes an issue in litigation (e.g., what time did the defendant login to the domain?), then the first step is figuring out what kinds of data would have this information and then where can it be found.  Moreover, people communicate via e-mail and instant messaging often unconsciously.  They may not be able to recall all communications on a particular.  The end result is that while counsel can say to put a hold on all data relating to a particular subject, that is of little use if the request can't also pinpont where such data can be found.  Instead, we may need to first do an initial search to determine where to place our holds. 

The upshot of all this is that in the context of the new federal rules and recent court decisions, counsel and their experts need to get more IT savvy about their organizations because document and records management is not what it used to be.  Retention schedules are a myth.  Beyond a few key business processes (e.g., contracts management, securities filings, etc.), there is no real management of data.  It's just one big mess.

Much Ado About Nothing?

With the recent press coverage of about new Federal Rules of Civil Procedure, you'd think that these rules just popped out of nowhere.  However, for those following the various e-discovery blogs such as Preston, Gates, & Ellis' Electronic Discovery Law and Fios' Sound Evidence, this has been a long trip.  After all, substance of most of the rules has already been implemented in federal courts through cases like Zubulake v. UBS Warburg (Zubulake III), 216 F.R.D. 280 (SDNY 2003).  Certain Coleman v. Morgan-Stanley, 2005 WL 679071 (Fla. Cir. Ct. Mar. 1, 2005) served as a kind of wakeup call more than a year before the Rule 37 Safe Harbor provision went into effect.  Nonetheless, for those trying to push the envelope in e-discovery, the press coverage is welcome news.  Hopefully companies will realize that they cannot wait until the last minute to figure out if their information is "discoverable."  Retention policies, litigation hold procedures, and information disposal practices need time to be written and implemented.  As Arthur Andersen can testify to, letting people to their own devices under the heat of an subpoena can lead to catastrophic results.  So let's welcome all the Johnny-comes-latelies and hope that they're not too late to the party.