Legal-IT liaisons like D'Agostino and Singh generally work with IT on specific phases of the discovery process, like those outlined in the Electronic Discovery Reference Model. Created by George Socha and Tom Gelbman, EDRM lays out the steps required for a discovery process, creating a map for e-discovery that both IT and legal groups have adopted (see chart, "Steps To Discovery", below).
IT's main work in this model comes in the first four steps: information management, identification, preservation, and collection.
The information management phase encourages companies to institute data management policies and technologies that address the creation, retention, and disposition of information, including unstructured content. It's a critical stage for IT and legal teams to work together to make for a smoother and less expensive discovery process.
The relationship between IT and legal faces its real test, however, in the next three phases, when a discovery effort is under way.
The Identification Phase
This phase focuses on finding all sources of electronically stored data that may be relevant to a legal action. Companies are required to keep such data and eventually may have to provide it to opposing counsel.
Legal departments generally have a rough idea which employees are associated with a legal matter, the time frame within which relevant information may have been produced, and keywords that are likely to lead to relevant data. It's up to the legal department's IT liaison to ensure that all appropriate IT systems will be included in the discovery effort.
It's also up to the IT liaison to dispel the Google myth. "Everybody has a perception that you can go to a screen and do a search, and all of the things relevant to a search are going to pop up," Singh says. Clearly, e-discovery isn't nearly that easy.
Often the key constraint is too few hands to do the work, as many IT organizations have been "cut to the bone," Singh says. In-house counsel shouldn't assume that e-discovery requests will always get priority over other projects that IT staffers are working on.
There are technology obstacles as well. When a discovery tool is used to collect information on desktops or servers at remote locations, coordination is needed with the network operations group to get access to those systems.
Framing the scope of the discovery effort also is critical for IT-legal teams. If an attorney asks for all of a specific employee's e-mails on a certain subject, does IT just need to look in the in-box? What about the "Sent" or other folders? Does the request include locally stored files and ones on flash drives? If the request isn't clear, it will lead to mistakes. "You don't want technology folks interpreting legal requests," D'Agostino says.
Search terms also play a part in determining the scope of a discovery effort. Broad terms will kick back an unwieldy pile of results, as the legal department at Webcor Builders learned the hard way.
"They would say, 'Give me any e-mail about Oracle,'" says Webcor CIO and senior VP Gregg Davis, who also serves as a liaison between the construction company's IT and legal departments. The result was tens of thousands of e-mails when legal needed only a few hundred.
Experiences like this one led Webcor to form a discovery team that includes Davis, two IT administrators, two members each from the legal and HR departments, and people from the business side as needed. Since then, attorneys have been doing a better job coming to IT with refined search terms, specific date parameters, and the specific people whose data is involved, Davis says. As for IT, it has taught attorneys a thing or two about "if-and" statements and other search techniques to produce more accurate results, he says.
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