Sue Reisinger’s “In-House Attorneys Become IT Gatekeepers” on paints an accurate picture of the role in which many corporate counsel have reluctantly found themselves in today’s electronic discovery environment. In simplest terms, corporate counsel often find themselves reluctantly playing the role of intermediary between IT departments who don’t fully understand the legal issues involved in electronic discovery and outside law firms who have only rudimentary knowldge of IT practices, procedures and technologies.
As the article describes, many companies face a disaster just waiting to happen.
A few quotes will give you the flavor:
“When it comes to e-discovery, many in-house counsel still find themselves in over their heads.”
“But despite electronic data’s notoriety, recent surveys show that an alarming percentage of corporate attorneys and their companies still aren’t up to speed. A study by Cohasset Associates Inc., a Chicago-based records management firm, showed that 46 percent of the companies surveyed don’t have a formal system for holding records, and 65 percent don’t include electronic documents when they retain documents.”
“For e-discovery, there’s a classic disconnect between technology and the law, and the law hasn’t fully caught up.”
“As part of these projects, many corporate counsel are having to take on yet another role: that of a liaison between the information technology staff and the company’s business units. For many of them, it’s meant a steep learning curve as they divine where and how the company’s digital secrets are stored in vast, decentralized computer networks.”
“But even with new software and new guidelines, Marathon Oil’s Kerrigan thinks it could be five years before the e-discovery frenzy calms down and courts offer clear directions on what companies must produce. Until then, Kerrigan adds, e-discovery ‘is like planning for Armageddon. No one knows how much is enough.'”
I got a certain sense of “sailing on the Titanic” as I read the article. has also posted a handy list of the 14 “Sedona principles” for electronic discovery published as guidelines by the Sedona Conference. These principles reflect the input of a varietyif people interested in electronic discovery. The devil, of course, will be in the details of implementing these principles. The first difficulty will be in getting lawyers to pay more attention to electronic discovery issues. The principles have become increasingly controversial as lawyers and others have focused on what they mean in practice, rather than a aspirational guidelines.
This article is a good one for showing what a horrible mess the world of electronic discovery is becoming. I have often described electronic discovery as practiced today as a freight train roaring toward a concrete wall. Some people think I’m exaggerating for effect when I say that the way lawyers are dealing with electronic discovery today will put some companies out of business and has the potential to break the court system. However, you may find yourself a little more sympathetic to my point of view after reading this article. People who do not get up to speed on electronic discovery may pay a very heavy price.
Note well that electronic discovery is becoming a primary area for client-driven technology – almost all of the initiatives are coming from clients, not from their law firms. It also is an area where I see the potential for “fourth generation legal technology” – technologies that begin to remove lawyers from large chunks of the process and limit the work that has been traditionally done by lawyers. A close reading of Reisinger’s article will reveal some hints of that starting to happen.
[Originally posted on DennisKennedy.Blog (]
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