Frequent communication between chief legal officers and chief information officers is essential for effective litigation management, according to Chief Legal Officers Need Better Partnerships with IT, a new survey conducted by media company ALM and analyst firm Gartner. Survey respondents reported that of all functions of information technology, e-discovery was the aspect that legal departments found most dissatisfactory. The findings stress the importance of unifying CIOs and CLOs, and preparing for e-discovery in order to gain efficiencies when and if a company foresees litigation.
Working together to protect the company
A CLO should regularly assess litigation hold procedures and ensure compliance through the IT infrastructure. Although most companies have legally sound data-retention policies and litigation hold procedures in place, adherence and compliance are constant challenges. A policy that has not been followed may be more harmful than no policy at all.
According to the Federal Rules of Civil Procedure (FRCP) and the Electronic Discovery Reference Model (EDRM), the legal and IT departments’ responsibilities often intersect in e-discovery:
- Before a company reasonably anticipates litigation it is encouraged to have in place a “routine, good-faith operation of an electronic information system” to dispose of records, absent a preservation duty. FRCP 37(e).
- When a company reasonably anticipates litigation, a party must preserve all information relevant to the future litigation. The FRCP 37(e) safe harbor no longer applies.
- Before receiving a discovery request, litigation parties must exchange copies or “description[s] by category and location — of all” relevant ESI in the disclosing party’s possession. FRCP 26(a)(1)(A).
- At the meet and confer or pre-discovery conference, parties must talk about the form of production and other e-discovery issues like preservation. FRCP 26(f).
- During discovery, the party producing electronically stored information (ESI) bears the burden of arguing that a production is unduly burdensome, or that a source of ESI is inaccessible, which requires an understanding of where and how the ESI is stored from a technical perspective.
CIOs must understand their critical role in e-discovery, as well as the associated risks. As stated by Gartner, “CIOs should recognize that they are, and are seen to be, valuable strategic partners in the development of corporate legal strategy and policy, and that they contribute to discussions of legal IT issues and to the development of solutions for those issues.” Electronic data is potential evidence in litigation—plain and simple—and the IT department must always treat it as such.
To prevent pitfalls, CLOs should work with CIOs to make them aware of how IT issues such as storing customer information implicate legal obligations, such as compliance with the EU Data Protection Directive, and the consequences of compliance failure. With this essential knowledge in place, legal and IT departments can begin to work together to create or purchase IT solutions to legal problems and inform IT infrastructure with legal strategy.
Abandoning the ad hoc approach
The Gartner survey indicated that 76 percent of CLOs responded that the IT department’s support of the legal department is done in an ad hoc fashion. Handling e-discovery only on a reactive, ad hoc basis can increase risk, liability and blame. Thus, there must be a shift away from ad hoc communication between the IT and legal departments to proactive information governance.
E-discovery is a multi-departmental, multidisciplinary endeavor, especially in large or litigious organizations. These organizations are best served by not only CLO–CIO communications, but also by a broader coalition. Ideally, this coalition should consist of experts from the IT and legal departments and litigation support (if it exists), as well as information/records management, human resources, data security and data privacy. Quarterly meetings can provide insights into new technologies and solutions, policies and compliance with existing processes. Once a company is facing imminent litigation, meetings may also involve a trusted law firm and e-discovery provider.
A meeting a month keeps the judiciary away
The Gartner study suggests that CLOs and CIOs should meet at least once a month. Not surprisingly, the survey found that “CLOs who communicate more than once a month with CIOs are much more satisfied with IT support.” Further, the study found that the CLOs who communicated with CIOs more frequently than once a month were nearly twice as likely to change or realign legal strategy or corporate policy as those with less frequent communication.
A joint strategy between the CLO and CIO that blends legal obligations with IT infrastructure is key to effective e-discovery throughout the entire EDRM. Conversely, a failure to ally the law with the realities of information and technology has resulted in some of the biggest sanctions in e-discovery today. The digital house can be brought to order when communicative and forward-looking CLOs and CIOs work together.