Barry Willms is senior attorney and discovery process architect at Counsel on Call (with offices in Atlanta; Boston; Chicago; Memphis, Tenn., and Nashville, Tenn.) and a frequent contributor to Counsel on Call's blog Lawdable (www .lawdable.com), where he writes about e-discovery trends.
"The traditional, linear, print it all out and put it in a box days are gone," says Willms. In the old days, he notes, more people communicated via telephone and only committed really "important" information to written form. Formal memos were created judiciously compared to the use of email today. That proliferation of online information isn't necessarily a bad thing, he points out. "You have a better idea of what you want to look at because you can search it. When you had paper in a box, all you knew was it said ‘accounts receivable' on the outside label or ‘John Smith's file'-now you know who it came from, and you can highlight the words you're searching for-all in a much more efficient manner."
These new methods of communication require new processes and approaches, says Dean Gonsowski, associate general counsel at Clearwell Systems in Mountain View, Calif. In an electronic age, the biggest misstep that many companies take, says Gonsowski, is trying to handle discovery just like they did in a nonelectronic age. "When I practiced as a litigator 15 or so years ago, it was paper-based and we went through it in a linear-based fashion. In this electronic discovery world everyone has tried to mirror that process. ... As we've continued to evolve, folks have seen that treating it the same way as paper doesn't
make much sense," he says. Technology provided by companies such as Clearwell can help, but companies need a plan for using that technology effectively, he says. "Organizations need to have a plan for how they want to use the technology and then be able to institute the change management protocols within the organization so the folks that are there start to use the tools in a different fashion."
But not every organization necessarily needs to be concerned proactively about e-discovery. "The first step you need to take is to look at your litigation profile," says Gonsowski. "If I'm a mid-sized service company and don't have much litigation other than periodic HR litigation, I may be able to say, on an episodic basis, that I'm better off when I do have e-discovery to go to my law firm or vendor that specializes in this and handle it as a one-off or a series of one-offs over time." On the other hand, he notes, "If I'm in a regulated industry or pharma, for instance, and have significant litigation, then the profile changes."
Still, according to "Content Archiving Market Trends, 2010-2013" from Osterman Research, 69% of organizations surveyed said they had been ordered to produce employee email for litigation. When this happens, they need to respond effectively. That's where best practices come into play.