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.
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.