E-Discovery: The Long Arm Of The Law

That's the message from a pair of attorneys who on Tuesday discussed the importance of electronic discovery, or e-discovery, at Nth Generation Computing's annual Summer Technical Symposium.

The three-day Symposium, held this week in Anaheim, Calif., is the eighth annual end-user conference for Nth, a San Diego-based solution provider.

E-discovery is the preservation and production of electronically stored information typically during the discovery phase of litigation, said Liane Komagome, principal and director of electronic discovery and legal business consulting at CRA International, a Boston-based legal and financial consulting company.

Most large businesses will face litigation sooner or later, said Daniel Garrie, attorney and partner at CRA International. He cited studies done by research firm Gartner, which found that nearly 90 percent of U.S. companies with revenue exceeding $1 billion are facing an average of 147 lawsuits at any given time, and that the average cost to defend a corporate lawsuit exceeds $1.5 million per case.

The base on which e-discovery is built is records management, Garrie said. Electronic records in principle are not so different from traditional paper records in that they must be managed according to rules such as those laid down by HIPAA for the medical space, he said.

Policies for retaining electronic records should also be the same for paper records, as any records management process should depend not on the media on which records are stored but instead on the content of the records, Komagome said.

Komagome compared records management to using a sword. "With a sharp [management] program, you will find that all the other parts of the [e-discovery] process easy to stick to," she said.

Assuming records are managed properly, the first step when facing litigation is to identify the relevant records, preserve them so they cannot be altered, and collect them for further study.

The primary difficulty at this stage is preserving data that may be live and in use by the business, Komagome said. "How do you handle it when a lawyer comes in and says, 'Preserve,' " he said. "What? Preserve. This is not just handing them a backup tape."

Once records have been collected for litigation, they go through processing, review and analysis phases. The processing of the data in order to weed out irrelevant data is where lawyers make a lot of money, Garrie said. For example, he said, the typical company might find that only 10 percent of its data is really useful. "So if it costs $1 million to process it, out of that, $100,000 is actually useful to your company," he said. "That's crazy."

And that's why records management systems are so important, Komagome said. "If you have aggressive records management, you get rid of a lot of crap. . . . You keep only the useful information," she said.

Reviewing the records is even more expensive, accounting for about 70 percent of the e-discovery process. "So the more information you give a lawyer that is irrelevant, the more it costs," Garrie said. "Don't forget. Lawyers may be charging $500 per hour, reading an average of 80 documents an hour. Do the math."

Electronic records to be turned over to opposing attorneys as part of the discovery process should be in their original electronic format, Komagome said. For companies that have to pull the data out of older systems, a lawyer's first question will be to ask whether the data was stored before litigation started, she said. If yes, the data has to be provided during the discovery process regardless of the technology.

In cases where the hardware or software that was used as part of the data creation process are available from other places, a company with relevant data stored in such older systems still have to make accommodations to provide it in a readable format, Komagome said. "And if it's so old that it's not possible to find the appropriate technology, then why didn't you dispose of this data," she said.

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