With each new technology comes a new challenge. Like David’s plight to slay Goliath, the practitioner encounters the e-discovery giant with each emerging technology. Keeping up with today’s trends is not an easy task. The moment the legal industry thinks it has conquered one technology, another steps in to take its place. And, if that is not enough, upgrades and modifications to current configurations and protocols occur just as frequently.

There seems to be a great disconnect between a corporation’s technology strategy and the rules and laws that govern them.  After all, we live in a world that is incessant in their pursuit of technological bliss; corporations are no different.  Whether it is because a new technology will help solve IT’s needs or help generate a more cost effective product or simply aide in lowering costs in general, the potential for legal ramifications, due to unilateral IT decisions, are furthest from their minds -- or so it seems. Simply put, the corporate bottom line is not the legal bottom line.  As a result, the IT interview is an essential part of the e-discovery process. Identifying the client’s data types and data stores are a critical component to a successful start to the litigation process.  The deployment of a technology and the effects technology has on policy are equally important and too often a second thought.

As 2009 comes to a close, I recall, with great unease, the challenges of a long year gone by.  The use of mail journaling, albeit a valid existing option for the IT person, became a nuisance when comparing the received and sent time of emails on the live mail server to that of email existing in the mail journal. IT, in this case, decided that it would journal Lotus Notes email to satisfy the obligation to preserve data under the Sarbanes-Oxley Act and SEC Rule 17a-4. I’m sure the decision to go with mail journaling was viewed as a cost effective alternative to some of the archiving solutions available today. What they did not realize is that their decision would eventually affect their exposure to risk.  Needless to say, additional expenses, that could have been avoided, were incurred by the client to ensure this issue did not go beyond the cause itself.

The option of storing employees’ instant messaging, SMS messaging, and pin-to-pin messaging on the company network, as they relate to PDAs, also proved daunting.  By default, most PDA systems will store call logs only.  The option of storing the other PDA messaging services locally are available to the company but often only discussed among IT personnel. Whether or not the conversations get to the risk manager and/or general counsel varies from corporation to corporation.  Earlier this year, a Florida Middle District Court submitted an order of adverse inference for spoliation of data on handheld devices (Southeastern Mechanical Services, Inc. v. Brody, 2009 WL 2883057 (M.D. Fla. Aug. 31, 2009). Although the essence of this decision pointed to spoliation of emails on a PDA, the notion of looking to the server for email, call logs, messages of all types, and calendar entries was raised. The courts are definitely in the know.

During this time period, Bloomberg messages and their unique format took on the role of an e-discovery giant.  As most of you know, Bloomberg runs a secure proprietary message system, which is used by their clients for communicating directly from the Bloomberg terminal to users with Bloomberg email accounts and non-Bloomberg email accounts. The message system is also used as a compliance tool for monitoring communication content as regulated by the SEC. Due to compliance and confidentiality obligations, the message format does not include various bits of information that would otherwise exist in a non-Bloomberg message system such as Outlook or Lotus Notes. For example, messages that are exported out of the Bloomberg Message system will exclude non-Bloomberg email addresses in the recipient fields (To, CC, and BCC) as well as in the body of an email consisting of a communication thread. Under these circumstances, how does one effectively and unequivocally review for privilege?

What do these three examples all have in common?
 
The final design and implementation of the systems in question were all technologically driven to meet their respective business needs. If you feel your client suffers from the same disconnect, push for legal and IT to meet regarding the real world issues generated in our world of e-discovery. One can not exist without the support and guide of the other.

How do we stay ahead of the curve? 

Attend technology conferences, routinely meet with your company’s IT personnel, and subscribe to technology trade magazines. Upon identifying new technologies, be sure to update your IT questionnaire accordingly.

Does your E-discovery IT questionnaire cover the three areas described above?

If it does, congratulations, you represent the minority!  If it doesn’t, stop reading this blog and update your questionnaire!  If you do not have an IT questionnaire or do not know why one is necessary, I highly recommend enrolling in the E-discovery Training Academy at Georgetown Law this coming March.

How do we gain an advantage over this technological Goliath?

The answer to this question can be found by seeking the advice of those who specialize in legal and technology.  It is the union between these two areas that ultimately gives you a competitive edge.

As 2010 draws near, I have no doubt that new technologies will emerge that will challenge our intellectual endurance and tolerance.  However, we need not look far for this new Goliath. There is already talk of issues that may arise from SaaS (Software as a Service) such as Cloud Computing and Utility Computing, de-duplication of file servers as an answer to storage and backup needs, and ANDROID technology that is taking the PDA world by storm.
 
I’ll take a closer look at these emerging technologies and report back in an upcoming blog.  In the mean time, I would like your input on technologies that have challenged your team in 2009 or have recently presented themselves as new technological Goliaths.

About Salvatore Mancuso

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