Data Overload is Overloading the Justice System
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eDiscovery, IT and What to Do About It
The Next Wave of Information Overload is Here
The topic at hand was the effect ediscovery is having on the justice system. The consensus was ediscovery is becoming so expensive and time consuming only companies with deep pockets will ever see the inside of a courtroom.
With so much data available today in so many places and lawyers penchant for being contentious and adversarial, what was once a process that took just a few weeks is now becoming the dominating and most costly aspect of many trials.
"The costs are staggering," said Robert Brownstone, an attorney and director of Fenwick & West's Law & Technology division. "Number one, to hire people that are capable enough to deal with these huge amounts of data. On the second level, if you don't have sound workflow and technology processes dealing with the data, you are going to turn loose lawyers and paralegals at very high rates on too much information."
Brownstone is aware of cases where the cost of ediscovery ran into the millions of dollars. In one case, Fenwick had to wade through 120 million documents; mostly emails supplied by the defendants.
Obviously, sifting through this much information is costly and time consuming but that's just where the problem begins. On the IT side, CIOs have to be able to produce the requested documentation. This takes time and money as well as taking IT staff away from other, more productive, duties. If they cannot find the requested documentation, the judge, as in Coleman v. Morgan Stanley (the billion-dollar poster child for this issue), could instruct the jury to assume the worst.
The information then has to be review the a company's internal legal council to sift out trade secrets and guard against privileged communications reaching the outside world. Once this is accomplished, the "other side" in the dispute then does the same thing looking for the information they intend to use at trail.
On top of this many judges, who are the final voice in deciding the parameters, or scope, of the ediscovery request, often dont understand just how vast the data storage landscape is at most companies today.
In one case, Bace's law school professor was representing a large insurance company. The judge ordered the company to stop recycling archive tapes. His professor, who knows a thing or two about IT, made a few calculations. He then stood up and said the judge could declare him in contempt but there was no way his client could comply with the order. The reason? There wasn't enough tape on the planet for his client to suspend tape recycling for more than 30 days.
"Unless you cooperate, collaborate in getting the facts on the table in responding to discovery and framing discovery requests and properly staging discovery, you'll be in a situation were lawsuits will get priced out of the courthouse," said Richard Braman, executive director of The Sedona Conference, a legal think tank.
And that was also the concern voiced by The Hon. Stephen Breyer, associate justice on the U.S. Supreme Court, at the conference. Bace quotes Breyer as stating: "If it really costs millions to do that, then you're going to drive out of the litigation system a lot of people who ought to be there."
It is already happening, said Bace. Even though there are revamped Federal Rules of Civil Procedure to try to deal with the issue, some cases are now being decided on process rather than merit.
This also brings up the issue of internal document retention policies and the role of the CIO as data steward. CIOs not only have to be aware of the ramifications of not knowing where documents are stored, for example, they also have to be aware of legality of their company's retention policies when it comes to things like emailsby far the No.1 document making up ediscovery requests, said Bace."What does this mean to the CIO?," asked Bace. "I guess, in many ways, the burden of legal success is slipping from the general council to the CIO. Because, in the contentious environment we're slipping into, the fate of a case rests in the process rather than the merits of the case. And the company with the least flawed ediscovery processes potentially is going to win."
Because of this, Bace advises his clients not save anything they don't have to for legal or regulatory purposes. "As soon as (email) has no value left to it get rid of 'em."
But such tactics are only band aids, said Sedona's Braman. What's needed is a whole new approach to the discovery process. One where the lawyers, instead of posturing and playing legal games during the discovery process, instead cooperate and collaborate to get the facts on the table.
Although his view was criticized as "utopian" by Miller during the March 20 conference, Braman is undiscouraged. Technology can't solve the problem, only lawyers can, and must if the system is to continue functioning.
"The legal profession needs to know that's there's a difference between zealously representing your client in an adversarial system verses getting the facts out on the table about which you are zealously going to litigate, he said.
"And when were are talking about the volumes of data that were talking about these days, there's simply no room for gamesmanship in terms of simply getting the facts on the table."