Don’t try to fight it, it needs to happen.
Many of my clients—on both the IT and Legal sides of the house—refer to pre-2006 as the “good ol’ days.” Those were the days when but for a new lawyer being hired in the Legal department and IT being asked to set up their computer and network passwords, IT and Legal rarely had to speak to each other. But in 2006, Congress changed all that by amending the Federal Rules of Civil Procedure to specifically include Electronically Stored Information (ESI) and thus eDiscovery was born. And with its birth came the sometimes “unnatural” coupling of IT and Legal.
I say “unnatural” because IT and Legal by nature are very different. They have different expertise and different education—let’s face it they probably never even took a class together after Freshman year of college. And while both groups tend to be very logical, they have very different ways of solving problems. But probably the biggest obstacle for these two being together is their language barrier.
Lawyers are notoriously bad at casting aside English in favor of legalese. Throwing out terms like “reasonable anticipation of litigation” and anything in our “custody, care and control.” They also love to say things like “I need anything that shows negligence” and “the Judge requires it” or “I need it for the meet and confer.” Never once bothering to explain what all this jibberish means.
IT is no better. Rarely does it occur to them to explain the burden of accessing data stored on back-up tapes or the organization’s need for a data map. And they feel the need to give the instructions to log in to the system as 192.168.1.1 instead of the website name, which just confuses and drives attorneys crazy.
So if these two groups are so poorly suited for each other—why am I suggesting these crazy kids brush their differences aside and get together? Because they have no choice. Consider it an arranged relationship set up by Congress. eDiscovery has brought these groups together and there is no turning back. In order for a company to create a repeatable defensible process to handle ediscovery requests, IT and Legal MUST work together. Legal needs to be involved up front to assist IT in enforcing retention policies and data mapping to make information more accessible and control the volume and burden ediscovery requests can put on IT.
Once a request comes in, IT and Legal should be meeting together to create an action plan on what data needs to be collected and discuss any deadlines and time constraints Legal is required to meet. Legal should be as specific as possible with the content they are seeking to review and at a minimum provide accurate custodian names and date ranges. Once the parameters are determined, IT should do their best to ensure their collection is fully inclusive without over collecting unnecessary data. This saves Legal time, which is incredibly limited with the early meet and confer requirements. A more precise collection can also be the key to saving the company money on outside counsel expenses down the line.
IT and Legal should also work together to preserve the data—IT should not rely on custodians to self-collect their data but should handle that function. While Legal should send out Legal Hold notifications to the individual custodians. IT will of course be essential in processing the data for Legal so they can review and analyze it for relevance, confidentiality and privilege and to evaluate the merits of the case. Since most organizations continue to rely on outside counsel for some review functionality, IT should support Legal in exporting the data to a format outside counsel can easily ingest into their internal systems.
These steps are essential to an organization’s success and require both groups to work together and improve their communication skills. It is time to embrace the new reality—so go ahead and change that Facebook status once and for all!
Photo credit: rutty via Flickr