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FCW : September 15, 2014
Commentary | PHIL FAVRO 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? Shouldn’t the agency’s chief counsel be responsible for address- ing this item? When you 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 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, confidential- ity or attorney/client privilege. That scenario is being repeated throughout the public and private sectors as the breadth and respon- sibility for e-discovery costs expand beyond the legal department. In federal agencies, the CIO is increas- ingly 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 fre- quently stored in filing cabinets or warehouses. Nor is discovery like the process from the previ- ous decade when documents were almost exclusively maintained on file servers, laptops or other local hardware sources. Discovery in 2014 is truly e-dis- covery, with discoverable informa- tion found in clouds, mobile devices and other digital locations. Those information-based changes to e-discovery have also caused a corresponding increase in complex- ity for the interrelated processes of collecting, searching and review- ing electronically stored informa- tion (ESI). If federal agencies are to keep pace, the CIO must be involved so he or she can provide technological expertise to the dis- covery process and help reduce the inefficiencies and expenses associ- ated with that process. There are three general ways that this can happen: 1. Establish a protocol. The first step CIOs can take toward estab- lishing an e-discovery process 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 pro- cess. Options include classification tools that assign a particular reten- tion period to data content. Such features expedite the process of searching for, reviewing and analyz- ing data in discovery. 2. Enable seamless data trans- fer. Next, CIOs should ensure that the agency’s proactive information- retention protocols are fully inte- grated 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 pro- cesses are effective. From a CIO’s perspective, that means acquir- ing the technologies to support an iterative workflow, which a skilled legal review team can use to better accomplish the ESI production pro- cess. For instance, with the proper use of predictive coding and visual- ization 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 and provide the review team with effective, enabling technologies, CIOs will help estab- lish the defensibility of the agency’s overall e-discovery process. ■ The critical role CIOs play in e-discovery CIOs might initially feel out of place in the world of e-discovery, but their information expertise is essential to the process The first step CIOs can take toward establishing an e-discovery process is to develop workable information-retention protocols. PHIL FAVRO is senior discovery counsel at Recommind. September 15, 2014 FCW.COM 11
September 30, 2014
August 30, 2014