Mark Karnick shares insights about the tech issues of preserving, collecting and producing digital information during a lawsuit’s discovery process.
By Mark Karnick
A new topic has come up in the IT-related focus groups in which I frequently participate. When asked, “What technology issues are with you concerned with right now?” my fellow CIOs offer up the usual answers: network security, disaster recovery, limited resources, etc. However, lately I’ve been hearing something new: e-discovery.
Once the responsibility of corporate legal departments and outside attorneys, CIOs and IT directors are beginning to encounter technology issues related to preserving, collecting and producing electronically stored information (ESI) during the discovery process of a lawsuit (hence the term e-discovery). Consequently, there is a palpable amount of uncertainty and apprehension about these new responsibilities and expectations. How did this come about?
Until recently, companies that found themselves in a lawsuit often had to hire expensive third-party consultants to help them comply with the rules of discovery, that is, the legal requirement that parties in a lawsuit produce and supply all relevant and nonprivileged evidence to the other side. In many instances this required the forensic analysis of computer hard drives, email systems, corporate servers and other ESI sources, a phase known as “collection.” Once collected, the data is then processed into a standardized format that can be reviewed and analyzed by the company’s attorneys, provided to the opposition and ultimately presented at trial. Evidence collection and processing is mind-bogglingly expensive; a major lawsuit between corporations can generate hundreds of thousands of dollars in discovery-related costs. Writing giant checks to e-discovery vendors on a regular basis has led many companies to make a concerted effort to find less expensive alternatives.
A number of specialized software programs for e-discovery collection and processing exist, but they have been used primarily by e-discovery vendors and technologically advanced law firms. A few software companies recognized the demand for in-house e-discovery solutions and began to offer products directly to corporations. Their success attracted major industry players to the e-discovery market. Companies such as Clearwell Systems (now owned by Symantec) and Autonomy (now owned by Hewlett-Packard), along with independent companies such as kCura, are marketing products directly to corporate customers that want to reduce or eliminate their e-discovery vendor costs by bringing collection and/or processing capability in-house.
Electronic evidence software tools are fairly complex, and their deployment and use requires a level of technical expertise above the scope and abilities of the average corporate legal department. Usually, the required support for these programs can really be provided only by, you guessed it, IT. Consequently, CIOs are increasingly being tasked with acquiring and deploying e-discovery systems or creating in-house e-discovery management processes. This trend is not limited to large corporations. Smaller companies have just as much incentive to reduce their outside vendor costs and often cannot afford to purchase a full-featured e-discovery product. These companies are now attempting to address e-discovery requirements by manually accessing their email archives, backup systems and server stores, relying solely on their internal IT departments and off-the-shelf search tools.