“Hi, I just need to see every electronic file and e-mail relating to Steve Smith and his employees, colleagues, bosses, and customers from the last year, please.” Arrrgh! Discovery should be easy in an age of electronic wizardry, but it’s a nightmare.
If your company is sued over an employment (or any legal) matter, the plaintiff’s lawyers will likely put you through discovery. That’s the process that requires you to produce any and all documents relating to the suit.
With the advent of electronic files (e-files), dealing with discovery can mean looking at and handing over thousands (or millions) of files—”opening the black box,” as Eric Schwartz and Vincent Walden call it. Schwartz and Walden are discovery experts for the law firm Ernst & Young.
Electronic discovery is nerve-wracking, they say, because you usually need to rely on technical experts to dig up what’s buried in all those bits and bytes, and you just won’t know if they are doing a good job until the final stages. Unfortunately, it’s often at that point that problems crop up.
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It’s not at all unusual on the eve of a trial, to suddenly find that hundreds or thousands of potentially relevant e-documents were not identified or processed and, therefore, were not made available to a suing employee’s legal team. Coming into court with empty hands is not good. You’re left holding the bag.
The most common mistake, say Schwarz and Walden, is erroneous preliminary filtering that takes place before a detailed search for files begins. Files that should have been included in the search may not be, and that could mean starting over—a huge waste of time and money, even beyond the legal embarrassment.
What typically happens is an arbitrary decision to limit the processing to just company e-mail files (ignoring personal e-mails that might contain relevant information) or just Microsoft® Office documents (ignoring documents associated with other software). A similar problem occurs when there are no attempts to recover password-protected or recoverable deleted files.
In either case, opposing attorneys will claim you have not produced all the documents you should have.
Expensive, Disruptive, and Entirely Avoidable
These problems are “expensive, disruptive, and entirely avoidable,” Schwarz and Walden say. “Take the time to do doing things right the first time.”
What do they suggest to avoid these pitfalls?
One solution is to hire professionals who operate under an established process—for example, professionals licensed by the AICPA (American Institute of Certified Public Accountants). They will follow rigorous guidelines that satisfy legal requirements.
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A number of professional certifications exist for people doing e-discovery. For example, Schwarz is certified as a Seized Computer Evidence Recovery Specialist (SCERS) as well as in Computer Investigations in an Automated Environment (CIAE).
As the experts you select may have to testify in court about their processes and their background, you want to hire someone with an excellent reputation, training, and experience, Schwartz and Walden say.
Approach discovery by assuming that your opposing counsel will examine your processing in detail, the two e-experts say. Make sure that your working papers demonstrate the accuracy and completeness of your work.
Ah, the marvels of technology! Right. In the next Advisor, more on data discovery and an extraordinary tool to help with that issue and all your HR challenges.