Last week I had the privilege of having dinner with a brilliant gentleman from my college days, Alex. Some may know of Alex as he the person who is responsible for my moniker, “Pie.” We had a great conversation that was mostly devoid of ‘remember when’ threads.
Alex is an independent lawyer in a city in the southern US. He has been practicing for quite some time and after delving into what I do for a living, he went into a rant on legal discovery, both paper and electronic.
He flat out accused many law firms of making large discovery requests in order to make money reviewing the results. Regardless of the outcome of the case, the billable hours accrued can turn a tidy profit for a law firm. He even shared a story of one case when the amount of discovery turned out to be very small and the firm dropped the case as they wouldn’t be able to make money from it.
While not all firms are like that, it does trigger certain behaviors and advice that in the grand scheme should not occur. We should be working to do what is right for our organization without being scared of ‘what if’ scenarios.
Leave it Out of Email
Alex told me that the one piece of advice he gives to clients is to not put anything in email. Pick up the phone and call. If it goes into email, assume that it will never be private.
There are many reasons for why this is sound advice:
- Email can be readily hacked. Any security that makes it ‘secure’ will inevitably make it unusable.
- A discovery request can occur at any time. Even if you eliminate email after 30 days, if a request comes in on day 29, that email has to be shared.
- There are two sides to every email. Just because you don’t have the email anymore doesn’t mean the recipient no longer has it. They may have even sent it on to more people.
His advice, don’t put things in email. Don’t do it. Call. Any written status reports should be purely factual. Don’t put anything in email that you don’t want to see in the public eye.
Alex then shared a story that made my document management roots quiver. When working on a Discovery project, he insists that status reports should just report facts, not findings. More importantly, he says they should not be versioned. The status reports should just be the final deliverable document over the course of its evolution.
No history. No tracking. Nothing discoverable.
Why don’t we just just role back everything we’ve tried to accomplish for the past two decades?
eDiscovery for the Masses
There are two issues at play here. The first is creating evidence. I am of the belief that if you are not doing anything wrong you are fine. People still want to see proof of innocence. The advice to keep sensitive information out of email is sound.
That doesn’t make it realistic. It is one thing to advise the owner of a company to keep certain information out of email. It is another to get everyone in an organization to do the same. There will be times that rule is not followed. The email may not be negative in nature, but if it is discoverable, you will be paying for people to review that email.
This is where technology can actually help. If advanced eDiscovery tools are available to smaller firms, they won’t be crushed by the large discovery costs. When larger firms realize that they cannot make all their money reviewing documents from discovery requests, maybe organizations can start making decisions based upon what will help them the most and not what will protect them from excessive legal costs.
This is the Reality
Alex’s advice isn’t wrong. It is the right advice for his clients. They do not have the resources to get it done any other way. He doesn’t have the resources to do it for them.
It is still the wrong answer. We need to change things so that the advice isn’t needed. We need to take this reality and see what we can do to fix it.
This is an opportunity for the industry to actually do real good and not simply sell software. Making the world a better place for everyone is a worthwhile goal.
Better eDiscovery helping keep small business afloat? What a concept.