The importance of documentation before litigation
In the Westlaw E-discovery conference today, one of the topics that came up, well actually because I brought it up, was the importance of an organization having their technology documented. The reason for this, is that one of the first steps in any federal (and probably soon to be state-level) litigation case, is the “meet and confer”, where all party’s attorneys meet to discuss electronically stored information. How it will be collected, how it will be searched, how it will be produced, etc. One of the responsibilities of the attorney is bringing with them enough knowledge about the infrastructure of their client’s network to be able to represent all of the various ways ESI might be stored.
The reason this struck such a cord with me is this. Typically, it’s suggested that attorneys get this information from the appropriate person within the client’s organization, or even to bring that person to the meet and confer. Having spent a number of years in IT, and talking to IT folks, I know the reality is not this.
The attorney will ask the CEO, or maybe in a large organization, the CIO about all this, and he’ll get the standard answer they provide. The attorney will bring that information to the meet and confer, and miss a whole lot of stuff that will, later (and at an unplanned for expense to the client) need to be searched. Not because the attorney was lied to, but because the CEO had no idea that the network guy has backup tapes in his basement at home, or that tech support set-up a VPN for a handful of salespeople to work from home, or how many people are walking around with mobile devices that have copies of email that may be discoverable, or regularly keep documents on thumb drives, etc.
There are people in the organization who do know this stuff, but, typically, no one asks them, and they never document it. Let’s face it, those of us with both feet in the tech world, didn’t get into technology because of our undying love of creating system maps, or writing policy and procedures, so it’s generally one of the last things we do. We just sort of “know” how things work and where everything is. I know this, I used to be the guy with the backup tapes in the car, and the various thrown together “hacks” running various pieces of the network. Unfortunately, when you’re in a litigation situation, that makes it tougher to determine who has the correct information, and how the attorney can get the correct answers to his questions.
I could also talk about the fact that sometimes, the guys who just “knows” how the email server is set-up, or where information from the database gets pulled, or who’s working from home, with mobile devices, leaves without sharing what he knows. I think we all know that’s a problem, in the ordinary course of business, let alone when the attorney is trying to get information for the meet and confer that no one in your organization has any longer! Having their firms lit support people come in and find out, is going to cost a bunch in billable hours, and quite possibly in business interruption as well. It takes time to collect documents for discovery when you are constantly finding new places to search!