Hot Potato – the e-Discovery Game!

Mr. Potato HeadRecently, Kroll Ontrack released their 2nd Annual ESI Trends Report (Full disclosure:  I’m a Registered Partner with Kroll.  In order to procure a copy of the report, they require you to provide some basic information).

<— Uh-oh…he doesn’t look very happy…we can glean two things from this:

1)  He works in IT, and
2)  He just read page 18 of the report

What caught my attention is the growing trend of directing more responsibility for developing strategy – and the corresponding enforcement of policy – toward the Technology department while steering it away from In-House Counsel and/or the Executive Suite.

Kroll IT

This shifting trend forestalls major implications within the enterprise, especially when one considers the difference between the statistics for 2007 vs. 2008.  It doubled in the US alone!  This begs the more pressing question, at least in my mind; what about 2009?

French Fries --- Image by © Royalty-Free/Corbis

To add more of a degree of difficulty to the mix, we’re in a severe economic downturn – IT budgets are being slashed at the very time more responsibility is being dropped in their laps (here’s hoping the potato has cooled off by now).

IT budgets for 2009 were most likely allotted last year (unless you operate on a fiscal year and still have time to do something about it).  Maybe you should already be thinking about an ESI line-item for 2010, if you haven’t got one already!

Remember, a lot of companies don’t have in-house counsel, so those entities are probably ahead of the game, but I’m still of the opinion that there’s no way IT can develop policy in a vacuum.  Also, as much as IT professionals don’t want to become lawyers, lawyers don’t want to become technology experts, either, and would probably welcome the opportunity to toss that potato to IT and never look back!

I’m sorry, but you either need both technology professionals and lawyers to formulate appropriate strategies and policies – or you need them in a single person!

Look, there are a lot of people who fancy themselves as armchair attorneys.  I was one of them.  I dealt with legal matters throughout my career.  I represented myself in court and thought of myself as fairly competent.  After all, anyone can read a law book and understand it if they’re inclined in that area – the same as some people are naturals at math or science.  But I can now also speak as someone who achieved a Juris Doctor degree and passed the California Bar Exam and I can state from experience; I was amazed at how much of the law and procedure I didn’t know!Dead Potato Head

In this context, expecting IT to be completely responsible for developing ESI strategy and policy is a dangerous game.  To the companies moving in that direction, I make one humble suggestion; throw a legal mind is in there somewhere.  Don’t make a fatal mistake!