The revised Federal Rules of Civil Procedure (FRCP) have pushed defensible e-discovery processes and procedures to the forefront. These in turn are (or should be) deeply entwined with each company's technological systems, records management programs and employee training. This is particularly evident in early preservation and preparation efforts and when implementing enterprise litigation readiness.
While adding some clarification, the revised rules regarding electronically stored information (ESI) have significantly increased demands on corporate counsel and enterprise IT departments, all while compressing their schedules in light of the early "meet and confer" requirements. Internal e-discovery efforts need to work quickly and efficiently across a matrix organization, including corporate counsel, IT, records management, corporate compliance, human resources and other administrative and business units. Add external e-discovery providers and outside counsel into the mix, and it's easy to see where things start falling between the cracks. Then the finger-pointing begins. As we've seen from a number of recent cases, someone needs to take ownership over the processes and connect all the dots.
In a number of instances, companies have assembled interdisciplinary teams from some or all of these departments. The company benefits from having their legal, technology and other professionals in the loop. While an improvement, this approach introduced new challenges: Usually, these team members had other full-time duties. When these duties conflicted, particularly during more complex discovery efforts, it increased the risks of non-compliance, discovery sanctions and increased costs and exposure.
With rising market discussion about the e-discovery gap between IT and lawyers, a new approach is evolving: The emergence of the office of technology counsel. It's important to emphasize "office" since it's simply too much for any one person to handle effectively on his or her own. Among other duties, such an office would:
- Develop, coordinate and oversee the execution of repeatable and defensible processes and procedures, i.e., "own the workflow" across the enterprise
- Investigate and propose the application of suitable technologies for litigation, regulatory and other compliance requirements
- Work with outside providers such as outside counsel, litigation support vendors and e-discovery vendors and consultants
- Have budget responsibilities and have input to the matrixed departments' budgets as well
- Work very closely with records managers and others to develop more effective information lifecycle management to proactively manage ESI and other records from cradle to grave
- Develop and deploy specific team and broader enterprise training and learning initiatives
In short, this office's mission is to transform the organization from one of reactive fire drills and ad hoc processes into a well-oiled machine to enhance repeatability, accountability, predictability and overall risk management. When done well, this translates into enhanced defensibility.
Due to the matrix, various reporting structures can be devised to include the general counsel, CIO, corporate compliance, etc. However, one needs to take care to avoid too many dotted lines, which could have the adverse effect of diminishing the clear chain of authority and increasing internal conflicts.
Many companies already have legal and IT professionals addressing these responsibilities to some degree. So who can best fill the leading role of technology counsel? An ideal technology counsel has a keen understanding of the law and the savvy application of technology. Thus attorneys with a deep understanding of the new rules, enterprise systems and legal technology would be an ideal fit. However, they can also be difficult to find or develop quickly. Fortunately, there are several key places where such professionals can be located. A growing number of attorney-legal technologists have begun to specialize in this area and squarely understand the legal and technological issues. Those with corporate enterprise experience are particularly equipped to make a faster transition.
Other key candidates have migrated to electronic discovery software and service providers, and some have engaged in offering consulting services. If you are having difficulty finding such an individual internally, you may find working with a legal technology recruiter will provide more qualified candidates and help shorten your timeline.
Bottom line, there is no magic bullet solution for all companies. Each will need to take stock of their unique strengths and gaps. Litigation-cost levels and corporate culture also factor into the mix. Those currently experiencing the most pain are likely to make more immediate changes, while others will continue to monitor these developments and take a slower, more measured approach. Regardless, it's clear that technology and the revised federal rules have made the practice of corporate counsel much more complex.