It’s Called Sputnik!: Don’t Fall Behind in the E-Discovery Space Race

by Exterro, Inc.
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This week marks the 58th anniversary since the launch of Sputnik II, the first spacecraft in history to carry a living animal—a dog named Laika—into Earth orbit.  But the Sputnik program, which began the space age in 1957, caught the United States off guard. In the years following World War II, the US felt they were the dominant world power, but with Russia putting the first satellite and then the first living creature into space within the span of a month (four years later they put the first human into space), it pushed the American people into a state of panic, fearing they’d somehow fallen behind the times.

Those of us working in E-Discovery might relate to that feeling of being caught off guard.  Electronically Stored Information (ESI) is constantly being created across new platforms, and the laws that regulate how ESI is collected can change with the stroke of a pen (think of the recent Safe Harbor ruling), so it’s not hard to imagine your legal time feeling on top of the world one moment and scrambling for a response in the next.

A first step to counter this is to have an optimized E‐Discovery Process in place; it’s a must-have for any legal or IT professional in today’s electronic information age. As with any relationship, clear communication between IT and legal can go a long way to bridging E-Discovery gaps.

Start by asking the right questions:

  • What systems are in the IT landscape?
  • Who are the subject matter experts (SME)?
  • Where is your company’s ESI housed?
  • Is the data replicated? Where and in what form(s)?
  • Does your company cross-reference its list of expired records with active legal?
  • How does your company track custodians who leave the company?

Next, create a robust information governance process and current, functional data map. Used in a disciplined way, a data map can function as a Rosetta Stone between IT and legal, which in turn will make answering the questions above much easier.

Finally, educate yourself on recent changes in the world of E-Discovery. One of the first things the United States did in response to Sputnik was to create the National Defense Education Act, which poured billions of dollars into the US Education System, expanding the entire spectrum of learning from college campuses to children’s books (the success of Dr. Suess and other Beginner Books benefitted directly from the push to close the learning gap).

These days, courts are increasingly grappling with how to apply bedrock e-discovery principles, like reasonableness and cooperation, in an e-discovery landscape transformed by mobile communication, social media, and significant advances in technology.

As the recent ruling from Burd vs. Ford Motor Company Co. (S.D.W. Va. July 8, 2015) shows, courts will no longer permit parties to engage in the type of e-discovery gamesmanship that used to be commonplace. But the ruling in D.O.H. v. Lake Cent. Sch. Corp. (N.D. Ind. Feb. 20, 2015) underscores the intricacies of e-discovery and the willingness of courts to recognize that mistakes are inevitable and shouldn’t be met with crippling sanctions. Knowing how these and other rulings affect current E-Discovery methods is vital for any corporate legal team looking to retain an edge.

Keeping up with the times is a given for any successful enterprise. 60 years ago, people went to bed one night thinking that space travel was something reserved for comic books and movie theaters, only to awake the next day to find it a reality.  In the same way, e-discovery is undergoing groundbreaking changes today.  Don’t get left behind.

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Exterro, Inc.
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