Most of what I know about cloud computing I learned out of necessity.
Documents matter to me as a litigator. A lot. If information is recorded somewhere and is relevant to the issues in the case, I have to get my hands on it. Some documents will become evidence at trial. Long before trial, a key part of my job as a litigator is to efficiently and cost-effectively help the client meet its key e-discovery obligations – preserve and produce relevant documents.
In the Mid-1990s, A Document Was Just a Piece of Paper
You see, 18 years ago, when I started practising litigation, I would ask the client for the documents related to the case and a box (or several) would arrive on my desk. What followed was the analysis phases. I would pour through the stacks of paper. I would decide who were the key players, analyze the issues, consider the relevant legal principles and potential sources of evidence, and decide on the legal research and fact-finding that needed to be done to prepare the case.
Several years and many paper cuts later, the nature of documents had evolved. Boxes of documents had to be supplemented with computer disks, hard drives, and even back-up tapes.
Today, the documents are anywhere and everywhere – data in the form of emails, GPS information, voice messages and business and personal records of every sort are stored on laptops at employees’ homes, on smart phones, on game consoles, and very often, on servers in remote locations owned by third party cloud service providers.
Perfect Information Management Means Quick Document Identification
In an ideal world, I would find each client’s information management system completely litigation-ready. The information management system would be sophisticated and structured and implemented bearing in mind business needs, regulatory and legal risks, records management best practices, privacy and security concerns as well as IT needs and cost. I could then simply query the system, and out would pop the relevant documents.
With Imperfect Information Management, Identification Is Well-Served with a Data Roadmap
As you well know, the world we live in is not ideal. A second best solution to the perfect information management system would be to have a roadmap consisting of a “data map”, to tell me what hardware and software is used, the policies in place (for retention/destruction of documents, email use, social media use, data of departing employees. etc.) and any and all cloud or third party IT service provider contracts. Rarely, however, is a client at this level of litigation readiness, to have thought through and compiled all of the reference materials that will be needed to help identify the documents relevant to the litigation.
Compensating for Lack of Litigation Readiness
Compensating for lack of litigation readiness is the mainstay of my litigation practice. I identify the team, which might include personnel from legal, business, IT, records management (if they exist), privacy and security (if they exist). By conducting interviews of these people and others, I get a handle on what and how information travels in the organization. Having learned of the types of documents created and used in the organization and how and where they stored, I identify the information which is potentially relevant to the case. I then put in place a “legal hold”, which means that I implement procedures (by talking and issuing memos to IT, the relevant “custodians” who have information, and any third parties who have possession of the client’s documents) to ensure that the relevant information does not get altered or deleted pending the resolution of the case. I then instruct the collection of the documents so that I can have them processed, to weed out duplicates and irrelevant information and get the documents in a form that they can be efficiently reviewed.
I can then finalize analyze the documents.