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Commentary

Lawyers To IT: ESI Is Your Baby

Fifty percent more attorneys than last year say IT has responsibility for developing and enforcing policies around electronically stored information. That's a good thing.
Fifty percent more attorneys than last year say IT has responsibility for developing and enforcing policies around electronically stored information. That's a good thing.This week, Kroll Ontrack released a survey of 400 U.S. and U.K.-based attorneys on trends affecting Electronically Stored Information (ESI).

According to the survey, 35% of U.S. attorneys say IT has the primary responsibility for developing and enforcing ESI policies. In 2007, the number was only 18%. That's nearly a 50% increase in just a year.

ESI -- including e-mail, Office documents, and audio/video files -- makes up the great bulk of evidence used in civil cases. Enterprises involved in litigation have an obligation to search for, collect, and preserve potentially relevant ESI, a process known as discovery. Discovery is expensive and easy to screw up -- companies that get it wrong pay big.

IT might think this survey result is evidence of lawyers tossing a hot potato into IT's lap so attorneys can have more time to cavort with Satan and/or golf. Not so. In fact, I'd like to see that figure go higher.

Why? Because the discovery problem is so complex, on both the technological and legal fronts, that IT and legal must acknowledge they need each other to manage it correctly. This survey indicates a growing recognition of IT's critical role in an enterprise's litigation preparedness.

Courts want to see discovery processes that are policy-driven, consistent, repeatable, and defensible (i.e., that the company has clear justifications for how it handles discovery). IT has the technological tools and the experience in driving repeatable processes and can apply them to the discovery effort -- with input from legal to make sure discovery efforts meet case law precedents and withstand the scrutiny of opposing counsel.

Second, the flip side of discovery is retention and disposition. As volumes of information increase in the enterprise, so does the need to properly classify, manage, and get rid of that information.

IT, in cooperation with business units and compliance officers, owns retention and disposition. A well-executed retention/disposition process on the back end will ease discovery burdens at the front end.

Of course, attorneys aren't completely ready to give up their ownership of ESI policy. Some 33% of U.S. respondents say in-house lawyers develop ESI policies, a close second to those who say it's IT's job. Still, it's a start.

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