Some US litigators saw the problem coming, but not that many did much about it. Old paper-based discovery regulations and practices just aren’t equipped to deal with the growing mass of digital files and email correspondence that is generated in corporate offices every day. Correspondence with external counsel is generally privileged, of course, but everything else that could be relevant to a case has to be gathered, sorted and offered up, should the worst occur and a discovery request hits the legal department’s desk.
But e-discovery expert Jonathan Redgrave believes that many lawyers are making it worse on themselves by sticking their heads in the sand about the whole issue. As with much of law, he says, preparation is key.
A thirst for information
Redgrave started his career working on civil trial and appellate matters at Minneapolis-based law firm Gray Plant Mooty, before making his name in high-profile litigation work at international law firm Jones Day. He says it was his experiences of managing discovery requirements on major international tobacco cases that first drew him to e-discovery – that and a love for technology itself. ‘Data privacy, discovery records management… it’s the space where technology and law meet that I find so fascinating,’ he explains.
Redgrave’s next role, as head of Nixon Peabody LLP’s information-law practice, gave him ample access to that space. He believes that few companies have been afforded the advice they need to create robust programmes for records management and disposal. ‘The parameters as to what to preserve, collect and disclose are not fully clear,’ he says. ‘And while courtrooms and corporate law departments are playing catch-up, technology is continuing to evolve.
‘For example, social media and cloud computing technologies are having a major impact on the ways in which we work. But, while employees profit from the freedom that these services afford, businesses and even the government are left scratching their heads when it comes to recording, storing or producing conversations or files that were shared on those systems.’
But Redgrave emphasises that e-discovery isn’t just about sifting through electronic correspondence to get a handle on what’s been said and to whom. ‘Companies also need to know, for example, what it will mean if data is accidentally lost or destroyed,’ he says. ‘Or what content they can safely delete from their systems without having to worry about facing repercussions down the line.’
To do this, Redgrave believes that you need to look forward as well as back: ‘Ask yourself “What will the workplace look like in 10 years’ time?” and “How will we be communicating and sharing data?” I think that current working practices are going to be almost unrecognisable in a decade, and legal departments need to start thinking about the impact of that on their e-discovery requirements now.’
The legal industry is hardly celebrated for being an early adopter of technology, and Redgrave says that this lack of understanding about current systems and future trends is also hampering some corporation’s e-discovery efforts. It was partly this that led him to work with others to set up the e-discovery working group of The Sedona Conference think-tank, a not-for-profit research and educational institute that pulls together leading lawyers, judges, academics and other legal professionals to discuss, study and help establish guidelines and standards in key areas of US law.
