How Technically Savvy is your Legal Counsel?

• Author: David Reavis, CCP, Ph.D.
• Position: Texas A&M University - Texarkana David.Reavis@tamut.edu
• Pages: 274-279

David Reavis, CCP, Ph.D.¹

Page 274

1. Introduction

There are numerous areas of expertise in the legal profession. Attorneys may specialize in criminal defense, family law, one of the many subfields of commercial law, or any of hundreds of other specialties. While each of these areas requires specialized knowledge, almost all of them are evolving to require attorneys to understand commonly adopted technology, along with the legal issues in each specialty. One of the most widely used communications technologies, electronic mail (e-mail), is coming into play in lawsuits. Who said what, in an e-mail, to whom, and when, is relevant in many court cases.

With amendments to the Federal Rules of Civil Procedure (FRCP) that went into effect in late 2006, electronic discovery preparedness and viable electronic document retention policies are critical to reducing risk in business operations. Hope Haslam, legal counsel and director of consulting services at Eqip Systems compares the level of preparation in many companies to a game of Russian roulette.² If an organization is not prepared to deal with electronic discovery requests effectively, the potential costs in litigation can be much greater than the costs of implementing an appropriate records retention system.

Analysis of data from a recent survey conducted to evaluate recommendations for electronic mail retention policies suggests corporate counsels may not be providing their clients with recommendations that are consistent with advice given by experts in electronic discovery. Responses from corporate attorneys allowed the researcher to conclude that their level of technical understanding of electronic mail storage mechanisms appears to be less mature than expected, and infer that clients in manufacturing industries may not be getting advice based on the most current technology from their legal counsel.

2. What Level of Technical Expertise should be expected of Corporate Counsel?

As technology changes, organizations may adopt technical tools at various stages of the technology's maturity. Electronic mail is one technology that has reflected this rapid change in features and function over the past decade. Early adopters of this technology found its usefulness limited because connectivity was limited to internal networks and the ability to send attachments did not exist. As the technology improved and Internet access was added, organizations had to address other issues such as whether the recipient actually received the message and whether they could open attachments from different word processing programs. Further improvements in e-mail have provided numerous features and configurations that can be tailored to meet the needs of diverse types ofPage 275 organizations. E-mail can be stored on a server permanently, or stored temporarily on a server then sent to the user's computer (client). These changes in functionality over time, along with the addition of many configuration options have added complexity to the legal implications of electronic communication.

Some questions that may need to be answered in the midst of legal proceedings may be:

* Who has a copy of an e-mail?

* Who sent the original message?

* When was the e-mail sent and when was it received?

* How long was the message kept by the sender and receiver?

* Were the activities related to this message governed by policy of the organization?

The answers to these and other questions will be different for every setting, based on organizational policy, configuration, and the specific technology used for e-mail. This complexity and variety of potential configurations poses problems for legal counsel. Can an attorney be expected to understand all of the nuances and technicalities of his area of practice, as well as the intricacies of electronic mail? Unfortunately, because so much of the discovery process is shifting to examination of electronic documents, the answer for many clients is "yes".

3. Differences in Technology Use

An organization's use of technology varies with size and industry sector. For example, a large organization is much more likely to depend on sophisticated technology than a small organization. A company that operates in multiple locations must provide information systems that meet operational, reporting, and communication needs in a way that a smaller, single location firm would not need to provide.

The industry sector of a firm also has an impact on how the firm uses technology. Consider a service- oriented firm such as a bank. Banks rely on computers, communications technology, and machines such as automated tellers to perform almost every task in the organization. Banks of any size must be concerned with security issues such as access to electronic records, authentication, and fraud. They must insure that systems will handle the transaction volumes with acceptable response times, and provide the appropriate level of detail for various transactions to customers and employees.

The requirements for service-oriented firms differ from other firms. Retail firms, government organizations, healthcare organizations, schools, military concerns, transportation firms, and manufacturing firms each have unique requirements for computer systems. These requirements differ in sophistication on numerous levels. In different industries the level of protection for sensitive data varies. Other differences include:

* the geographic distance between operational locations,

* the expected retention time for records,

* the level of access for internal and external entities,

* the potential for health and safety concerns, and

* the level of government regulation in recordkeeping.

In the manufacturing sector, organizations typically have a high level of sophistication in computer applications related to machine control such as robotic equipment, production machine control, and production scheduling systems. In smaller manufacturing firms, there may be less emphasis on information systems issues such as record retention and more effort focused on the technology needed to manage key business activities such as production.

4. Research Project

The evolving area of electronic discovery in litigation is complicated by the diverse technologies available and the differences in how various industries approach technology use described above. Even with the emphasis on electronic discovery in legal journals and other publications, training and continuing education opportunities, legal precedents and court decisions, companies in litigation involving e-mail discovery continue to make expensive errors during the litigation process and in the risk assessment stage prior to litigation. Examples include the January, 2008 ruling in U.S. District Court by Judge Barbara L. Major which required Qualcomm to pay an $8.5 million penalty for failing to produce e-mail relevant to a patent lawsuit against Broadcom and other expensivePage 276...