When the Office of Federal Housing Enterprise Oversight was subpoenaed for documents in litigation involving Fannie Mae and Freddie Mac, its IT department thought it had searched every cranny to find relevant e-mails. It turned out the agency overlooked disaster-recovery backups that were stored off-site.
That oversight triggered a legal fight and then a protracted search that resulted in a $6 million discovery bill--a whopping 9% of the office's annual budget.
When it comes to e-discovery costs, $6 million isn't an outlier, which points to the urgency of IT and legal departments working hand in hand to build policies and execute on them when litigation hits. At times, however, IT and legal work at cross-purposes--they don't communicate or, worse, argue over the best approach to collecting electronically stored information that's being called for, often on short notice.
To avoid these squabbles and the mistakes that come out of them, smart companies are creating e-discovery teams led by legal and IT principals, with other stakeholders in the organization brought in as needed. These teams set policies for data retention and preservation, oversee implementation of these policies, and handle e-discovery work
related to specific legal cases. We'll look at what three companies--in insurance, telecom, and construction--are doing to make e-discovery the team sport it must be.
One key component to the smooth operation of these teams is a liaison who coordinates the technical and legal requirements of discovery efforts. In some cases, this liaison may be a tech-savvy paralegal or attorney, but often it's an IT pro.
Brandon D'Agostino, of health insurer Blue Cross Blue Shield of South Carolina, had 10 years of IT experience, including four at BCBS working with application and database servers, when he left to get a law degree. He planned to become a litigator, but before taking the bar heard that Blue Cross was creating a new position--ESI counselor, charged with creating policies for the company's electronically stored information.
"We joke that I have street credibility from the IT department, because I was the guy getting called in at 2 a.m., so I understand what they're going through," D'Agostino says. They may joke, but street cred goes a long way toward smoothing over and anticipating conflicts between IT and the legal counsel's office. That's because a critical part of the liaison's role is to build relationships between the two groups.
Another lesson these liaisons have learned is that they need to convince IT that discovery efforts aren't a one-time exercise, and that the scope of any one investigation could easily expand. If legal needs e-mail from 10 people today, D'Agostino makes sure to ask IT what would happen if they end up needing it from 200 instead.
"If you give an IT person a horrible task to do one time, he'll complain," D'Agostino says. "Give it to him 10 times, and he'll find a way to automate it." E-discovery needs can't be attacked with "manual, fly-by-the-seat-of-your-pants processes," he says.
Verizon's director of legal discovery technology, Jaideep Singh, puts it another way: IT must understand that you'll be coming back. Singh, too, has an IT background, having initially worked in IT running billing and order fulfillment systems before moving to the legal department five years ago, where he quickly was pulled into discovery work because of his IT chops. Now he coordinates with the IT groups in charge of key sources of stored data, including e-mail, billing, and human resources systems.
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