It Takes A Team
Companies can't appoint a legal-IT liaison and consider their work done. E-discovery needs a team that includes, at a minimum, IT and legal representatives, plus people from other areas with major information management responsibilities such as HR and records management. Thomas Smith, a partner and founding member of the e-Discovery Analysis and Technology group at law firm K&L Gates, also recommends a business unit representative who knows how information is used, what the business needs are, and where relevant information resides.
Regular meetings are key, even when there isn't pending litigation. Webcor CIO Davis meets quarterly with counterparts in legal and HR, and they sometimes bring in a business unit executive. The meetings are used to set policies and procedures, and for IT and legal to update each other on the latest trends in their fields that may be relevant to discovery. When a case hits, Davis maps out a strategy with legal counsel and HR for the collection and preservation of relevant information. E-discovery teams at companies where litigation is common tend to meet more frequently.
At Verizon, the e-discovery team takes part in finding and selecting discovery tools, so there's input on the IT, legal, and security needs when testing and choosing products, Singh says.
Some of the most important work e-discovery teams do in regular meetings is to set policies on information retention and disposal. Poor policy can be costly. IT may assume the legal department wants to save every e-mail, when in-house counsel wants IT only to save information that's potentially relevant to a legal action.
In fact, the legal department likely wants IT to delete information when allowed by the law and industry regulations. That reduces the amount of potential information that has to be collected and analyzed, saving on the cost of e-discovery.
"Follow your policies" is one of the first lessons Webcor's Davis and his IT team learned from working with legal counsel. "One of the first questions they ask you in a deposition is, 'Do you ever deviate from policy?'" Davis says. "If you say yes, you have another three hours on the stand. The minute you deviate from policy, you open the door to massive damages."
Opposing counsel is sure to raise questions about a company's ability to maintain control over its data, especially if that data strengthens a company's defense. "But when you show how on top of this you are, you take a lot of wind out of the opposing counsel's sails," Davis says.
Solid e-discovery policies won't guarantee a win in court. But they can ensure that a case isn't lost based on a misstep with data identification, collection, and preservation. Key to this is the strength of the e-discovery team, one that has established comprehensive policies and has mechanisms in place to ensure that those policies are followed.
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