Category Archives: Duties

Speaking: Lost in Translation

“Language is the source of misunderstandings.”
— Antoine de Saunt-Exupéry

j0438482Attorneys.  High-tech professionals.  High-tech professional attorneys.  Management.  Laymen.  Not only do they have to communicate between themselves, they have to communicate with all of the support staff that will handle an EDD issue.

Many cases also involve foreign participants – and, as logic will follow, their data.  Nothing like adding multiple languages to the mix to really complicate matters…

What we got here is a potential failure to communicate.  A potential failure of grandiose proportions.  What steps can be taken to avoid it?

Attorneys follow rules of discovery – electronic or otherwise – from state & federal civil procedure and criminal procedure law.  Procedure is the ‘road map’ of every case.  It’s the nuts & bolts of the legal system – the ‘plumbing‘, if you will..

Technology professionals are tasked with creating a ‘map’ of their hierarchy in order to identify, preserve and collect ESI.

Management has a vested interest in both groups being excellent cartographers.

Does this cover every contingency?  Who else might we – or our colleagues – be responsible for communicating with about this?

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Proportion is a major factor.  The larger the parties involved, the likelihood increases exponentially of laymen taking an interest (public or private shareholders, staff, reporters, etc.) who have no experience with either discipline.  The rumor mill starts grinding.  Like it or not, there may be public relations aspects to all of this.

The attorneys and technology professionals who ‘make it happen’ will not likely be directly exposed to this part of the equation, but there is one element they should be concerned about; making sure that the information flowing upward – and downward, for that matter – is accurate and concise for the benefit of those who will be directly exposed.

Credibility is key.  A mistake that initially appears to be harmless can turn into a nightmare for a professional who is held to a particular standard of duty.  These duties may involve split loyalties, and worse, there is a risk to the parties that their duties may diverge.  One may be forced to walk a tightrope.

Corporate executives may have duties to their companies, their counterparts, their shareholders (if they’re structured that way) and the public.  Attorneys – first and foremost – are Officers of the Court, and this duty supersedes all others.  Disseminating incorrect and/or misleading information – even when unintentional – may get these people in hot water.

We all must take care to assure that this doesn’t happen.  That’s our duty.

Attorneys – Get with the ‘Program’

An interesting survey appeared in the September 2008 issue of the American Bar Association Journal.  The subheading states, “Lawyers Slow to Adopt Cutting-Edge Technology“.

I took solace in the statistic that only 2% of lawyers maintain a law blog (assuming readers consider this a blawg then I’m certainly ahead of the pack) and only 8% of law firms follow suit, but as a general trend, the data is somewhat troubling.  It’s a symptom of a larger illness.

The number-one complaint against attorneys is lack of communication.  I’m not just speaking in terms of what their employees or clients say – it’s also the number-one complaint lodged against them with bar associations.

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It’s bad enough when the subject is one in which an attorney feels comfortable discussing.  But add complex technology to the mix and that’s a recipe for disaster.  In the “wild west” days of e-discovery – before it even had a name – one could get away with mistakes.  Now that the rules have been formalized, the path is littered with attorneys – and their clients – who have suffered greatly for their mistakes.

There’s an old saying, attributed to Confucius, which states; “He who does not know, and does not know that he does not know, is a fool”.  In the e-discovery world, the new saying is, “He who does not know, and does not know that he does not know, will be sanctioned”.

 

Core competency in this area is no longer hoped for; it is expected j0439531and presumed, both by clients and the courts.  It’s not enough for attorneys to rely on IT personnel; they must also be able to understand what their IT professionals are telling them so they can communicate this information effectively to their clients, the courts and even their adversaries. Otherwise, it’s the attorneys and their clients who will bear the consequences of mistakes.

Further hampering this process is the fact that very few IT personnel speak “English”.  Many a layman has become glassy-eyed while listening to a “techie” explain a process in “techno-speak” while not understanding a word of what was said.

Like it or not, the onus is on the legal professional to be competent and understand this process.  If something goes wrong, blaming the incident on a lack of technical knowledge and expertise is not going to fly.