“Language is the source of misunderstandings.”
— Antoine de Saunt-Exupéry
Attorneys. 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?
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.
I argue that good communication — before litigation starts — can help with e-discovery later.
E-discovery reflects the natural collision of technology and legal practice. As an enterprise creates an ever-growing mountain of records, adversaries of course want access to it. Knowing that litigation and e-discovery are inevitable, an enterprise can use technology proactively to make records more benign. What do you think? –Ben
http://hack-igations.blogspot.com/2008/05/nix-smoking-gun-e-discovery.html
Ben:
Welcome – and congratulations on being the 1st to comment!
I agree that communication is key – and in a perfect world it would be seamless. Unfortunately, a bunker mentality can set in and the result is that everyone takes their eye off of the ball. They focus on defending their small piece of the puzzle instead of remembering there’s an entire puzzle.
For example, if departments within the same enterprise become adversarial, or the enterprise becomes adversarial with outside counsel – they forget that there is another adversary out there – the one they really need to worry about.
Implementation of litigation readiness programs – “before litigation starts”, as you mentioned – go a long way to prevent this from happening.
I’ll be commenting on this in a future post.
Perry