Clark: "We hire attorneys for their IP and not their IT."

Electronic discovery has increased demands on storage systems, and that’s likely to continue.

According to Michael A. Clark, a managing director at EDDix LLC, an electronic discovery consulting firm, corporations with revenues greater than $1 billion is carrying around a caseload 150 active matters, 35 to 40 percent of which involve electronic discovery. With the new rules of Federal Civil Procedure adopted last December, he observed, “we’re going to see an ink blotting downward of electronic discovery to ever smaller matters.” He projects that within the next three years that 35 to 40 percent will move to 75 percent.

Finding information within the enterprise has always been a challenging task for legal ferrets, but those challenges have ballooned in recent times, according to Clark. “There are now not only more things to find, but more places to look for them than there had been before,” he said in a video interview posted at SearchStorage.com.

Finding information is a big challenge to operators of an enterprise network, but so too is deciding what should be stored and how long to store it, Clark noted.

“A number of corporations are devoting considerable resources to creating retention policies and then trying to enforce those policies,” he observed.

“You don’t want to be in the situation where you’re keeping everything forever,” he continued. “Corporations are telescoping the amount of time that they keep this stuff–not because it costs so much to store it, but a) it’s a liability and b) it costs an awful lot to go find it and retrieve it depending on what medium it’s on.”

When the discovery hammer is dropped on an IT department, it needs to be nimble enough to respond to the request, Clark said. “You need to preserve data when litigation is imminent,” he explained. “You need to be prepared to suspend all of the destruction processes that you have in place associated with the storage of that data.” Recycling of data tapes may have to be suspended, for instance, or “snapshots” taken of dynamic databases. In addition, the data should be in “litigation hold,” where it will be centralized and protected from alteration by users of the system.

Tools for collecting documents relevant to a litigation are very important to the discovery process, Clark said. The number one pain point from the general counsel’s point of view, he noted, is the ability to collect electronic documents. They must not only be collected from servers but from other places like desktops, laptops and other devices. For that kind of collection, there are programs that will create mirror images from desktops and laptops without disturbing the functions of those devices.

As the demands of electronic discovery increase, corporations, especially those in high litigation industries–financial services, energy, telecommunications, pharmaceuticals and tobacco–will begin to alter their infrastructures to accommodate those demands. Many of those companies, Clark said, are beginning to look at bringing some of the features and functions associated with electronic discovery–which heretofore may have been outsourced to a specialized electronic discovery services provider–inhouse so they can do some of those services themselves.

Among the services the companies will bring under their enterprise umbrella, he noted, are automated document collection and automated categorization of documents at the time of creation.

“So rather than looking at something forensically, after the fact, and then trying to figure out where it fits,” Clark explained, “we can add metadata to the document itself that would allow us to put it in buckets and more easily retrieve it and sort it downstream, with the presumption that all documents created are potentially evidence.”

In the storage area, he continued, businesses are looking more closely at near-line storage and archiving as an alternative to backup tapes. “Backup tapes were designed for disaster recovery and certainly were not designed and don’t function very well when we need to retrieve specific documents from specific custodians,” he argued.

He explained that the increased use of electronic discovery has raised the risk profile of corporations in litigation matters and pumped up compliance costs. Things like automated document collection and categorization, he continued, are being deployed in order to mitigate risk and cost.

Clark cautioned companies not to depend on attorneys for solutions to their electronic discovery problems. “Attorneys are not technologists and, by and large, not business people,” he explained. “What we’re talking about here is a business issue. It needs to be approached as a business process.”

“Attorneys have a tendency to be reactive,” he continued. “They tend not to be particularly proactive. Man-with-hair-on-fire is not a good way to live your life if you’re a corporation.”

“It’s the business people who are beginning to drive and should be driving many of the processes that represent best practices,” he added. “We hire attorneys for their IP and not their IT.”