Chances are, you’ve experienced some version of this exchange:
What IT said: “No problem! We can absolutely collect all the data from that unauthorized application that nobody knew Employee Y was using for work communications on his own mobile phone.”
What IT meant: “We may — or may not — be able to get any data out. Either way, it will be really interesting to try! But we definitely can’t do it within your budget or your timeline.”
There’s a disconcerting tendency for legal professionals and information technology specialists to miscommunicate, sometimes dramatically. It can feel as if they’re speaking two entirely different languages. Those distinct languages arise out of the different ways that these two fields approach problems.
What’s going wrong, and, more importantly, what can you do about it?
To lawyers, ediscovery is — or at least should be — still just discovery. The point is to find sufficient relevant information to resolve a factual dispute or settle a legal argument while using a consistent and repeatable process that the legal team can defend. Legal then has to present the most helpful of that information in a format that will be clear, understandable, and immediately impactful for the decision-maker, whether that’s the other side in a settlement negotiation, a judge, or a jury. And nowadays, corporate legal departments also have to balance significant business concerns, particularly with their budgets, staffing needs, and information security.
When assessing ediscovery technology options such as automated legal hold platforms, technology-assisted review, or cloud-based software-as-a-service (SaaS) vendors, the legal department often undervalues the role of IT. Of course, we’re generalizing here, but legal has a tendency to see technology as either a necessary but impenetrable evil — to be handled from arm’s length — or as a magic button that will effortlessly solve problems. Neither approach gives IT the respect, or the time and information, that it needs.
On the other hand, IT departments may see technology as valuable or worthwhile for its own sake while losing sight of the end goal of ediscovery. This can lead to IT seeing value in tools that aren’t actually valuable in the context of ediscovery. Some of this is due to an appreciation for elegant technical solutions or seamless software integration — even when those solutions and integrations aren’t what the legal department needs.
What legal says: “I just need data about X” or “Please collect all of the data for this hold…”
What IT hears: “I don’t know what I need! Please figure it out for me.”
What IT does: Collects everything that might be even tangentially related to X.
What IT says: “Oh sure, I know what you’re looking for.”
What IT means: “I have no idea what you’re asking for, but I know what I’d want — everything!”
To make matters worse, IT is often kept in the dark about budgetary constraints, such as data storage costs. If the legal department doesn’t provide leadership or information about what specific data is needed in a particular matter, IT will default to over-collection — which can explode legal’s budget.
How to Better Integrate the Legal Department and IT
Show everyone the big picture. Both the legal department and IT need to understand how the business unit is operating as a whole and what the goals and budget are for each individual case. That means that the legal department needs to keep IT advised about the issues and goals of collection for each case and about the outputs needed for eventual production. At the same time, IT needs to keep the lawyers advised about costs, hurdles, and necessary choice points. When determining budget spend on legal tech for the following year, make sure both sides communicate goals, roadblocks, and value early in the decision making process.
Build relationships and establish liaisons or contact people. Those communications are difficult without solid, workable relationships between departments. Both legal and IT need to know who to turn to when they have questions. By forging strong relationships and having regular check-in meetings to share information, you can keep everyone focused on the same goals for individual cases and the overall process and budget needs of the legal department. While you’re meeting, ask IT to suggest what you could do better or more cost-effectively. They may be aware of tools or approaches that legal hasn’t considered.
What both sides say: “We’ll need to [Charlie Brown teacher voice]wah wah wah wah.”
What the other hears: “I tuned out a while ago and have no idea what you’re looking for or talking about here.”
Ask questions until you understand the other side. People from both sides need to ask for clarification and keep asking until they understand the answers. Professionals hate to reveal what they don’t know, but simply asking “What does that mean?” is a sign that you’re interested and diligent, not ignorant. (Or if you are ignorant, at least you’re trying to fix it!) When you’re listening, don’t tune out or glaze over. And when you’re explaining, keep it simple and use layman’s terms. Remember, though, that neither of you is stupid. You don’t need to “dumb it down,” but you do need to tell the other person what you mean.
What legal says: “This should be easy, so I waited until the last minute to look at it. I need all this data collected by tomorrow.”
What IT hears: “This is impossible, and even if I can do it, it’s going to take forever. Besides, it’s overdue already.”
Allow time for the process. For their part, lawyers have to give IT enough time to do their work. Dawn Radcliffe, Legal Technology Manager at TransCanada Pipeline, discussed this dilemma at last year’s PREX conference. As she said, “It was difficult to communicate a sense of true urgency to the IT group because lawyers always called for data at the last minute. The more data they needed, the longer they seemed to wait to ask for it.” Don’t abuse your IT department this way: start asking for data as soon as you know you need it.
Legal has to be involved — or at least available — at every stage. In short, legal needs to remember that ediscovery is still discovery; even when the information is electronically stored, its purpose is to help resolve a legal dispute. IT can help tremendously, but legal has to take a central role in guiding processes, just as it would have done for a paper-based dispute.
Legal and IT can work together beautifully, but each side needs to appreciate the perspective of the other. By learning to speak the other’s language — or at least appreciating that you are speaking two different languages, borne out of the different approaches you take to your work — you can get more out of your ediscovery, without blowing your budget.