Advanced Technology Solutions for Litigation
Sep 20, 2010 QuickCounsel Download PDF
Corporate counsel are increasingly facing challenges in the form of new rules, new and revised regulations and ever more stringent case law requirements. In addition, counsel must deal with reduced budgets, a massive increase in the volume and type of electronic data, and increased litigation and investigation. Technological advances can solve the challenges facing corporations and counsel and address the issues and burdens for legal, compliance and information governance.
A New Landscape for Corporate Legal Departments
The idea of the open-ended budget has, for all intents and purposes, ended. The GC and corporate financial overseers are asking litigation teams at corporations of all sizes to manage, control and reduce costs. Often-times, these reductions in costs are not trivial, with many legal departments being asked to reduce their litigation-related costs 25% or more, even in light of increased litigation and investigation and a massive increase in the volume of data. Counsel are being asked to do more, often much more, with less.
While there is no single approach that is right for every organization, corporate counsel need to take an informed approach, looking at corporate culture, risk tolerance, litigation profile, size and global reach. Technology can assist counsel in managing eDiscovery, litigation costs, and reduce risks in a systemized, repeatable, and defensible manner that is in compliance with the various rules and regulations they will face.
Approaches may include any or all of the following:
Utilizing Tools and Technology to Manage Increased Regulation
Regulation is increasing in volume and complexity. Whether or not the legal department owns regulatory compliance, the fact is that corporate counsel will inevitably need to be engaged when breach occurs or when regulatory enforcement is likely. Although legal departments don't often carry out internal monitoring, they do need to be involved once non-compliance is identified. Information access and collaboration with other professional departments such as Compliance, Audit and Risk are extremely important. Rules that counsel should be concerned with for litigation purposes include but are not limited to the Federal Rules of Civil Procedure, the Federal Rules of Evidence, and the UK Civil Procedure Rules.
Because of increased regulatory actions as well as the specter of legal sanctions, corporate counsel can feel secure in recommending to the CEO, CFO and board the acquisition of a solution that will enable both internal and external policies to be monitored and enforced. Such a solution, especially when part of a comprehensive information governance platform to handle information and records management, compliance and eDiscovery, can provide invaluable ROI and risk avoidance. However, though universal surveillance is possible, counsel should nonetheless be aware of the limitations on implementation, such as the EU Data Protection rules and the vagaries of local business requirements.
Opportunities to ease the burden of collaboration include:
Defining an Information Governance Business Plan
The key to defining an information governance business plan is to create tangible benefits across the enterprise. The following considerations can help counsel make a strong business case:
Building the Right Team to Tackle Information Governance
Because the challenges of managing information impact the entire enterprise, counsel are in a unique position to build a team and drive a process to ensure compliance with Federal and local civil procedure rules, case law, and regulations. Counsel can also monitor compliance with the enterprise's own document retention and destruction policies. An effective team would be staffed by Legal, IT, Information Security, Compliance, Records Management, and, in the interest of practical success, a couple of end-user "clients." Some specific questions counsel can ask that will help determine the information governance program are:
Legal department challenges don't end with budgetary and technology considerations. Counsel must keep abreast of the changes to the law, and, as evidenced by the never-ending tide of litigation on the topic, meeting the duty to preserve and enforcing a proper legal hold is the biggest challenge for counsel.
The key to meeting the preservation obligation is ensuring that relevant information is preserved. Best practices suggest that a legal hold notification be sent to custodians, but that alone does not meet the obligation if relevant information has not been preserved. (See Rimkus Consulting Group v. Cammarata and Pension Committee v. Banc of America Securities.)
Legacy search techniques such as keyword, Boolean and Metadata have come under attack in recent cases, suggesting a more defensible approach is needed. With cases and research, it is clear that advanced search technology, such as concept search and contextual analysis, can provide such a process. (See Asarco, Inc. v. United States Envt'l Prot. Agency and Victor Stanley, Inc. v. Creative Pipe, Inc.).
New Media: Voice, Video and Social Networking
Worldwide, there has been a rapid and dramatic increase in the use of social and rich media technologies. Social media sites are extremely difficult to monitor effectively in order to ensure compliance with corporate policy and regulations, and managing rich media such as audio and video can be a time consuming and manual process. While there is little case law on the discoverability of social media sites, the FRCP, as well as the FSA COBS 11.8 and the recent FINRA regulation, among many others, make it clear that they fall under the definition of ESI and counsel should ensure that any relevant information on these data sources is preserved.
The use of social and rich media in a corporate organization has the potential to create a gaping hole in an otherwise sound eDiscovery and information governance program, increasing the potential for spoliation and failures in the litigation hold process. Counsel should be prepared to interview custodians and ask questions about the use of social media sites and also be prepared to perform discovery on their use, with the potential to require subpoenas and motions to get evidence. (See Leduc v. Roman.)
Inside and Outside Counsel Leveraging Technology for Advantage
The relationship with outside counsel is one of the most important to corporate counsel and the legal team. By adopting new methods and technology, legal departments can increase the productivity of current staff and streamline the link with outside counsel to gain cost advantages in a defensible manner. Some of these approaches include:
Technology and Its Defensible Use
Corporate counsel can improve existing eDiscovery and information governance programs with a systemized, repeatable, and defensible approach that enables them to search, identify and analyze all data types in compliance with the Federal Rules. Counsel should look for technologies that are able to form an understanding of the meaning of all types of content, regardless of type (such text, audio, video, structured or unstructured), regardless of where it is stored, or what language it is in. Such an approach will provide a quick return on investment (ROI) and reduce time, costs and risks while dramatically improving the legal team's ability to locate relevant information for legal hold purposes.
The technology should be able to withstand legal challenges in court. Counsel should look for technology that has a strong history of litigation support and use in countless thousands of cases, including hundreds of cases that have gone to trial, to ensure that the technology is battle tested and proven. Counsel should also look beyond legacy searches such as keyword, Boolean and metadata searches (as the defensibility of these approaches has been called into question), and should look to advanced search technology such as concept search, contextual analysis, and automated clustering.
In order to create a defensible process, counsel should:
Additional ACC Resources
ACC Resource Library - Program Material
ACC Resource Library - ACC Docket
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