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As Technology Progresses, Legal, IT Must Work Together
As Technology Progresses, Legal, IT Must Work Together
*This article originally appeared in the Michigan Lawyer's Weekly November 5th 2007 EditionIn 1989 I took my first job in technology at a national electronics retailer called RadioShack. The reasons for applying for work there were in plain view as soon as I stepped across the threshold. Employees and customers alike had access to all sorts of technology in a single location. Not very far from the holidays, RadioShack wanted to hire people that understand the technology and felt comfortable explaining the benefits to customers. Of all the technology products in the store, the new computers drew me in for a closer look. Starting these machines required more than just pressing the button; it was necessary to insert a "boot" disk into the drive prior to turning on power. Once the disk was inserted and the computer powered up, you could then unlock the potential at your fingertips. As far as we were concerned the most recently introduced and cutting edge personal computer was the Tandy TL/2. It boasted a 286 MHz processor and 640k of RAM and even came with a powerful word processing package known as DeskMate.
These early computers served as a launching pad into the technology that we use today. For those who rely on either a desktop or a laptop, the technological innovations in just the hardware components are very easy to see. All of the internal components have increased in speed, capacity or capability. Laptops have gotten more and more powerful to the point that they can rival the capabilities of many desktop computers. When you join the portability of a laptop with the ability to connect to a wireless network in our homes, offices and even our local coffee shop; the ability to work from anywhere begins to take shape. If your day-to-day life centers on using the computer, the component where everything is stored, the hard drive, is of great importance. For those who have never deleted anything, then have the unfortunate "hard drive crash", your life gets turned upside down. With many hard drives becoming potential evidence, and the technology to store one thousand gigabytes becoming readily available; is the ability to potentially store fifty million pages of evidence on something that can fit easily into a lunch bag or briefcase really that good?
The suites of applications that we find on our desktops, laptops and even mobile devices were at best, in their infancy back in 1989. The internet was very rudimentary and the ability to collaborate with colleagues or clients anywhere in the world had not made it to the mainstream. Today, without Microsoft Office I am not sure how I would be creating this article, although I am sure my father's typewriter is somewhere to be found. Besides Microsoft Office, other applications such as Corel WordPerfect and Star Office allow you to design and create an entire array of document types. Financial Departments can create and maintain complex spreadsheets broken down by department or cost center. Marketing Departments can create press releases and new product information and even Executive Assistants can create that database of everyone's date of birth and birthday cake preference. This is amazing progress for those who depend on this type of technology and for business in general, but to those who must consider this potential evidence, the mountain may seem impossible to navigate.
Over the last several years the advanced features that we have required from our desktop and laptop computers are finding their way into smaller more portable devices. A new language comprised of words like BlackBerry, Razr, iPod and Windows Mobile is being spoken from the board room to the break room. My two daughters are eagerly awaiting the arrival of their younger sister, and are convinced that they can make her first word"iPod". Companies are deploying this technology at alarming rates, which further expands the landscape of potential evidence. No matter which portable devices you do or do not recognize, they all mean that the ability to transport information quickly, easily and in larger quantities is readily available. These types of devices force an expansion in the search for potential evidence without missing the traditional electronic and paper sources. A friend of mine who is an Attorney summed it up this way, "It isn't about sitting in a warehouse and going through boxes of paper like we used to." How many companies have considered that their intellectual property is escaping the confines by way of one of these devices?
If you have ever had a computer problem and tried to figure out where your IT person was or why no one was answering the helpdesk phone, I can tell you where they are. It is a secret location known as the server room or in some companies the datacenter. Within the datacenter are the systems and storage that everyone in a corporate environment relies on, such as E-mail Servers, Database Servers, Voicemail systems among many others. If you have ever received the warning message that resembles "your mailbox has exceeded its storage limit, please delete some mail or contact your system administrator", the call and comparison came next. Phrases like, "I can use my Google account and they never tell me my mailbox is too full" or "since you are in IT and can't get me a hard drive for my mail, I will just go get a hard drive for you.' While I have had this happen more often than not it is not the storage capacity that is as much of a challenge as it is backing up that data. Being responsible for recovering data quickly is critical to many organizations. Responding promptly to the call to recover a document for a user and being able to restore their document quickly is becoming a requirement, even if the document turns out to be their resume.
Last year the Federal Rules of Civil Procedure were amended to include Electronically Stored Information. The issue of ESI being admissible has been around for years, and its specific inclusion was of no big surprise. What is new is the ripple effect from the decision; still circling around both the Legal and Technology communities almost a year after the new rules took effect. In the corporate environment, Technology Departments and Legal Departments are finding themselves on opposite sides of a conference room often in need of a translator. The IT department wants to serve its users by providing more storage, the latest mobile technology and in many cases the ability to work from home just as you would if you were in the office. Proactive Legal departments are calculating the risks and are becoming more involved in decisions that could potentially open the company up to increased liability. With the varying facets of technology changing so rapidly it is difficult to predict what the future holds, or how to deal with it.
The best results occur when IT Groups and Legal departments come together and have an open dialogue which allows each side to start to understand how and why events take place. The IT Group is able to provide a view into areas like e-mail storage, backup and retention policies and the use of portable electronic devices for transporting information. With this information in hand the Legal Department can often work a potentially different angle into helping IT get some of the equipment to ease the burden and decrease the risk. They can also assist in creating a document retention policy and backup standard, which can further ease the burden on IT having to maintain all data indefinitely.
Just as the technology for creating and storing vast amounts of information has progressed, so has the technology that allows the vast pool of potential ESI to be transformed into a manageable size, even before it is needed. Backup solutions, now merging with archiving solutions, are becoming more sophisticated as they begin to incorporate the exclusion of certain file types and the enforcement of retention policies. Companies that grew through acquisitions now have the ability to deploy technology that provides a unified view of all backup media once separated by vendor or geography. The use of archiving solutions for messaging environments is becoming more and more commonplace. In these systems, email ages to a particular date, it is automatically moved to less expensive slower disks by an application that also removes all duplicate messages and attachments and replaces the originals with a link.
It is safe to say computers and their ever-expanding technologies are going to be around for a while and so will the changes to the FRCP. The decision on whether to establish and adhere to backup and retention policies proactively or reactively must be weighed by companies and their counsel. From a cost perspective, it is far cheaper to choose the proactive approach and begin including those considerations as IT assets need to be replaced. With either approach, the application of the right technology can have a tremendous impact on making the data far more manageable.
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