Heidi Maher, Esq. eDiscovery Expert

Question: In your experience, what is the top three eDiscovery challenges you seen?
Maher: In my experience in talking with IT and legal personnel at some of the largest corporations, their biggest pain points are:

1. Legal’s expectation of IT to keep “everything forever”
2. IT’s frustration with Legal’s “analysis paralysis”
3. Level of business disruption with each eDiscovery event

Keeping Everything Forever

With the passing of the Amendments to the Federal Rules of Civil Procedure, many organizations were blind sighted by the requirements that go along with electronic discovery.  Since, they did not have a method of finding and preserving data, the only alternative was to hold backup tapes, suspend email and document retention policies, and hold on to legacy systems such as retired servers and databases, hard drives of former employees, etc. Though costly, it was better than facing sanctions for spoliation of data. Due to government investigations or large lawsuits, more and more companies are on “perpetual litigation hold”.  This can be very frustrating to their IT departments as they are now in charge of maintaining increasingly larger amounts of data with little to no increase in their budget.

Analysis Paralysis

The more electronic data piles up, the more the need for good information management. However, IT cannot make retention policies, they merely enforce them.  They must wait for the legal and business units to give them the rules by which they can start to separate the data they should keep from the data that they can delete.

Though the headache of dealing with out of control amounts of data is an everyday concern for IT, legal and business units have many other concerns.  Typically it is only when a large eDiscovery event occurs, that it finally hits home that their ineffective records management, along with the shrinking cost of storage space for electronic data, has led to skyrocketing hours needed for attorney review.  It is usually at this point that an eDiscovery task force is pulled together from various departments.  These task force members often times have conflicting agendas.  General Counsel wants to minimize legal risk, the business unit wants to minimize cost and disruption to the company and IT wants to reduce the expectation of doing more with less.  That’s part of the reason why it can take months or a year to come up with just an email retention policy that everyone can agree on.  The other frequently cited reason is that even if the task force comes up with a policy, there is no one at the company who is willing to take the risk of the final sign-off.

Business Disruption

Unless a company has a well implemented in-house eDiscovery model, when a large eDiscovery event hits, it is by all accounts a “fire-drill”.  This is no fun for anyone.  Legal must send out and track litigation hold notices to the appropriate personnel, order IT to preserve and collect data, meet with outside counsel on strategy, and cross their fingers that everyone performs as expected.  IT is tasked to determine where the relevant data sits, then preserve and collect it – all in a very short time frame.  This can lead to a delay or postponement of other IT initiatives necessary to keep the company’s enterprise current and running smoothly. On the business side, employees have to take time out of their day to look for relevant emails and documents on their PCs and in their physical files.  Sometimes, they must suspend their normal workday for hours at a time for their computer to be taken off-line and imaged.  All this means lost revenue and productivity for a corporation.  If a these fire-drills occur more frequently, there can be significant impact on a company’s bottom line.

eDiscovery StraightTalk by Heidi Maher, Esq.

We hope you have found this issue of eDiscovery StraightTalk insightful.  If you have questions that you would like to have answered in future issues, please submit them via email at david@kazeon.com.