Electronically Stored Information Makes Legal, IT Strange Bedfellows

Whether they're getting ready for the Securities and Exchange Commission's XBRL filing requirement or trying to figure out what their document management and retrieval system should do to best comply with discovery requirements for electronically stored information (ESI), IT and legal can no longer do their jobs effectively without each other.

"Responsibility for ESI strategy creation and enforcement must leverage the legal and technical expertise across the entire company – CEO, board, legal, IT, HR, finance and compliance," the latest Kroll Ontrack ESI trends report says. "An ongoing marriage between IT and the legal team – blessed by sponsorship from the board – is essential to ensure that the plans put in place are adequate, all-encompassing and feasible."

Marie-Charlotte Patterson, VP of marketing for e-mail archiving software provider AXS-One, says her company's sales calls have illustrated this change in the past few years. In 2004, she says, the company sold solely into IT. Now, more often than not, those who are making decisions about archiving and e-discovery technology come from the legal department -- "with your token IT" people.

Patrick Zeller, deputy general counsel for Guidance Software, makes similar observations. Often, he says, his company's clients have compliance or e-discovery teams made up of IT folks and people from legal. That's the only way they can ensure that both IT needs and legal needs are met.

What started it all? In 2006, the U.S. Supreme Court amended the Federal Rules of Civil Procedure to include provisions addressing the discovery of electronically stored information. Generally, the rules require companies to know where to find any electronically stored information that might be relevant to litigation and how hard it would be to produce that information at trial -- all within a very short time span. Legal knows what information might be discoverable, but IT knows best how to catalog it, store it and find it when necessary. Thus, the partnership between the two began.

And though Zeller and Kroll Ontrack Director of Legal Technologies Michelle Lange agree that the overlap is perhaps best observed in large companies, or companies in industries that are heavily litigated like insurance or pharmaceuticals, Zeller is quick to point out that small and midsized companies are doing the same thing. "A lot of smaller companies are heavily regulated, and if they're outsourcing their e-discovery, it can be very, very expensive. A lot of companies are seeing huge savings from bringing this in house."

But most of the time, IT and legal don't speak the same language. IT operates with charts, diagrams and technical jargon, while those in the law department are often best known as masters of "legalese." Moreover, notes Lange, the two don't often have similar interests. As Zeller puts it, it's "like two worlds colliding."

So how does one go about getting IT and legal around the same table and on the same page when it comes to ESI? Lange says her company, which provides ESI consulting computer forensics and other legal technology services, takes a three-pronged approach.

"Helping IT understand what keeps legal up at night is key number one. Legal often says, 'IT doesn't understand that this is the life of the company on the line here;'" she says. Then, "we'll work with IT to pull a data map so legal can understand what the architecture looks like from an IT perspective." Finally, they'll do what Kroll Ontrack likes to call a "tabletop drill," where, with both groups at the table, they propose hypothetical situations and ask each group how it would respond. The process helps identify communication gaps that the two groups can work through together.

There's not a single answer that works for everyone, though. AXS-One's Patterson says she sees more legal people at her customer advisory board meetings because they need to better understand how the technology works, what the architecture looks like. Zeller, on the other hand, says he sees companies going even further than that. "They'll usually have a dedicated legal person to deal with IT, and/or a dedicated IT person to deal with legal. A lot of times, the IT person ends up doing so much work for legal that they end up being permanently attached, or permanently detailed, to legal." In some cases, he says, he's even seen people with IT backgrounds end up in law school so that they can better address ESI and other compliance issues.

No matter how they choose to address it, most agree the overlap between legal and IT is a trend that will continue to grow. After all, Lange explained, technology is always evolving, becoming more complex. And the law is constantly changing to "catch up" to technology's advances. Perhaps Patterson said it best: "The tide has turned and there's no going back."