Commentary

The critical role CIOs play in e-discovery

Imagine you are the new CIO of a federal agency and of the many budget items crossing your desk, the one causing you the greatest concern is e-discovery. You are likely asking: Why is my budget being cluttered with e-discovery costs? Isn't this the domain of the lawyers? Shouldn't the agency's chief counsel be responsible for addressing this item?

When you finally speak to your legal colleagues, you are dismayed to learn that a CIO's duties now include controlling -- and ideally reducing -- the costs associated with e-discovery. Perhaps you walk away confused, wondering why you would be responsible for e-discovery when neither you nor your IT colleagues will ever look at a document for purposes of relevance, confidentiality or attorney/client privilege.

That scenario is being repeated throughout the public and private sectors as the breadth and responsibility for e-discovery costs expand beyond the legal department. In federal agencies, the CIO is increasingly viewed as a key stakeholder in the e-discovery process. That is because discovery is nothing like it was in the 1990s, when litigants sought documents that were frequently stored in filing cabinets or warehouses. Nor is discovery like the process from the previous decade when documents were almost exclusively maintained on file servers, laptops or other local hardware sources.

Discovery in 2014 is truly e-discovery, with discoverable information found in clouds, mobile devices and other digital locations.

Those information-based changes to e-discovery have also caused a corresponding increase in complexity for the interrelated processes of collecting, searching and reviewing electronically stored information (ESI). If federal agencies are to keep pace, the CIO must be involved so he or she can provide technological expertise to the discovery process. Such expertise can help reduce the inefficiencies and expenses associated with the discovery process.

There are three general ways that this can happen:

1. Establish a protocol. The first step CIOs can take toward establishing an e-discovery process and cost efficiency is to develop workable information-retention protocols. CIOs should collaborate with agency lawyers and IT professionals to identify the data being created, classify that data in terms of importance, and then decide what data must be kept and for what length of time.

Depending on the budget, the CIO should also consider whether technologies can assist in this process. Options include automated services, such as classification tools that assign a particular retention period to data content. Such features expedite the process of searching for, reviewing and analyzing data in discovery.

2. Enable seamless data transfer. Next, CIOs should ensure that the agency's proactive information-retention protocols are fully integrated with its reactive e-discovery review process. That generally means having technologies in place to seamlessly transfer data from clouds, mobile devices and other upstream data repositories to the downstream review process.

3. Use the right tools. CIOs should also consider working with their legal colleagues to ensure that the agency's e-discovery processes are effective. From a CIO's perspective, that means acquiring the technologies to support an iterative workflow, which a skilled legal review team can use to better accomplish the ESI production process. For instance, with the proper use of predictive coding and visualization tools, e-discovery workflows can be streamlined to expedite the search and review process.

By working with their legal counterparts to develop workable retention protocols, integrate those protocols with the review process and provide the review team with effective, enabling technologies, CIOs will help establish the defensibility of the agency's overall e-discovery process.

About the Author

Phil Favro is senior discovery counsel at Recommind.

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