IT plays an ascending role in e-discovery


When Conan O'Brien discovered it was time to end his stint as host of "The Tonight Show," he hired the law firm of Glaser Weil Fink Jacobs Howard Avchen and Shapiro to help negotiate his exit from NBC. Despite its large name, Glaser Weil is a mid-sized firm with only about 100 attorneys. To go up against adversaries the size of a major broadcast network, it bolsters its legal expertise with leading-edge IT.

Glaser Weil's CIO, Mark Karnick, who started with the firm in 1997 as an MIS director, has seen many changes in the role technology plays in the attorneys' work. Increasingly, he told me recently, IT is taking on greater responsibility in e-discovery (the process of exchanging documents in electronic format during the evidence-gathering period prior to a trial).

"Overall, what you're seeing especially at the corporate level, is IT becoming responsible for e-discovery. Part of that is because the tools have become more complex," he told me. "You really need an IT infrastructure to support them."

As CIO, Karnick said he has to know not only the tools used for e-discovery, but also the processes and procedures so that his team can support the entire e-discovery infrastructure. Part of his job is to consult with the firm's clients' IT departments and offer guidance on how they should collect data and deliver it in the most cost-effective format.

E-discovery is a relatively new process, and many organizations are still trying to get a handle on the requirements in an evolving area of law. When I asked Karnick what he's seeing in terms of compliance, he said it is "wildly inconsistent." The more sophisticated a company is, the more likely it is to handle e-discovery well, but the level of sophistication is independent of company size, he said.

"We've gotten stuff from very large, established companies that was not in a form that could be used without significant modification. The companies that are investing in [e-discovery collection tools] are more advanced than the companies that are having their internal IT departments doing this."

The courts gradually have been getting tougher about e-discovery requirements, and some heavy penalties for non-compliance have been paid. Karnick said that he is seeing less tolerance among judges for e-discovery failures that result from ignorance.

"Defendants can no longer say, `We just don't know that much about computers and we just didn't know,'" he said. "Right now the people who are being sanctioned are the ones that are either purposefully ignoring or failing to comply with the requirements and using an ignorance excuse."

When there are unique technical situations that pose serious challenges to e-discovery, courts seem to be more understanding. Karnick is dealing with a case right now that involves a client having to turn over back-up tapes, but they were unable to recover them. He had to call in a forensics specialist.

Back-up tapes "might be the most expensive type of forensic function there is," he said. "You have to figure out what's on the tape and then replicate the system that was originally used so you can pull the data off of them."

Another trend Karnick said he's seeing is in courts' declining willingness to deal with paper evidence. Now that so much evidence is in electronic format and it is fairly easy to convert most paper documents to electronic format, courts are becoming less enthused about having to handle so much paper.

"Very soon we're going to have a situation where if you want paper, it's going to cost extra," he predicts. "It's going to be more and more difficult to justify the fees and costs associated with the processing of paper evidence when there is a less expensive, electronic alternative." -Caron