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.

‘At the time we started [in 2002], there was no sense of precedents in e-discovery matters,’ explains Redgrave, ‘and the process was very slow and cumbersome. It was clear that industry and the courts needed some practical guidance in order to advance, so we put together a working group in order to discuss and establish principles from which to work. We now have 800 practitioners in the group, including leaders in the technology field, which enables us to be very forward-looking.’

Essentially though, Redgrave says that Sedona’s e-discovery principles are based on one fundamental reality: ‘You can’t save all electronic data and, at the same time, you need to know where the important information is,’ he says. ‘Our job is to help companies to find the right balance when it comes to establishing what to keep, what to disclose and what can be discarded.’

The US legal industry, like elsewhere in the world, has undergone significant changes following the recent economic downturn, and Redgrave believes that this has shaken things up to the point of fundamental change. ‘Budgets have become tight, but spending on the e-discovery requirements of litigation has traditionally been difficult to control – sometimes reaching tens of millions of dollars. General counsel are tired of deferring to outside counsel and third-party vendors who do not understand what the corporation needs. They are making it a priority to curb and control their e-discovery spend.’

On the cusp of change

Redgrave adds that it’s not just US companies that should be concerned about e-discovery requirements; he believes it will soon become an even bigger topic for companies with any US presence. ‘The US has always had a very broad and liberal civil discovery scheme,’ he says, referring to cases that he has worked on previously, which involved producing millions of documents. ‘But, today, those broad requirements have become even harder for companies to meet because businesses now work on so many platforms, use thousands of laptops and computers, back up their data on distributed servers and server farms, and send billions of emails. The rate of data growth is actually pretty amazing when you study it,’ he adds.

Redgrave says that this combination of sophisticated technologies and the country’s broad discovery system means that it’s simply not possible to store and search all data. But it’s difficult, if not impossible, for most companies to know where to draw the line as to what’s reasonable to leave outside storage and search requirements. ‘If legislators and the courts don’t agree with the approach that a company takes, then that company could find itself in breach of its requirements,’ he explains. ‘And you also need to factor in the increased volatility of e-information; for example, dynamic databases that evolve with each update and deletion. If you’re not careful, information that is pertinent to a future case could be here today, but gone tomorrow, and that could leave you vulnerable.

‘You can’t just push a button to preserve a forensic copy of everything the moment a case hits,’ he emphasises. ‘If only it were that simple. Instead, you need to understand the technology, rules and regulations ahead of time so that you can plot a course for retrieval when the need arises. And you need to be able to exercise your judgement as to what’s most important. Unsurprisingly, this poses significant challenges for organisations; particularly those with offices around the world.’

Redgrave says that some companies are ahead of the curve and have established data maps and system profiles, so that they know where information is and how to find it. But, he says, most shy away because it costs money to be proactive, even though, by ‘putting such systems in place, companies are reducing their risk and, therefore, their overall spend because they know where to find files when they need them’. At the same time, he questions the logic of a company bringing all discovery technology in-house to manage its data. ‘If they’re not a technology company, why are they trying to get on top of the technology themselves?’ he points out. ‘Using a third-party service provider would generally make more sense for most entities, as those providers should be experts in their field. This also reduces the risk that a company would pick the wrong technology and be stuck with that capital investment.’

In fact, Redgrave believes that, as technology evolves, there’s a real potential for companies and their vendors to build more collaborative ways of working to help track and manage the transfer of data, or what Redgrave refers to as ‘everyone doing the best in their own space’.

‘This isn’t a static playing field; technology is evolving all the time,’ he emphasises. ‘And that means more data, in different places, communicated in different ways. It’s going to be fascinating to watch it unfold.’ 

For more information on the Sedona principles for e-discovery, visit the Sedona Conference official website.

Jonathan Redgrave has now left Nixon Peabody LLP to form a specialist information law firm, Redgrave LLP.

This article was first published in Legal Strategy Review, issue 6