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Involving agency legal staff in the selection and implementation of new technologies for managing electronically stored information can help government CIOs overcome internal resistance to e-discovery initiatives.

In the federal government sector, lawyers, paralegals, and other legal professionals contending with rapidly growing volumes of electronically stored information (ESI) during the discovery process are feeling increasingly uneasy about some agency approaches to e-discovery, according to findings from Deloitte’s 7th Annual Benchmarking Study of e-Discovery Practices for Government Agencies.

For example, the percentage of survey respondents who felt they receive adequate technical support when dealing with opposing counsel during the legal discovery process dropped by more than half, from 53 percent in 2012 to 25 percent in 2013.

Likewise, far fewer attorneys surveyed felt confident that, if challenged by a judge or opposing counsel, they could demonstrate that their agency’s ESI is accurate, accessible, complete, and trustworthy. In fact, “somewhat confident” responses dropped steeply from 68 percent in 2012 to 38 percent in 2013, while “not at all confident” responses jumped from 23 percent in 2012 to 42 percent in 2013.

According to Chris May, a principal with Deloitte Transactions and Business Analytics LLP, these and similar survey findings suggest there is growing concern among government legal professionals that technologies and processes deployed to help legal staff wade through and manage troves of digital information may not be meeting their needs. “Attorneys are held accountable for the ESI they produce during discovery,” says May. “Senior-level attorneys accustomed to traditional manual document review may be hesitant to turn the process over to systems they don’t completely understand.”

May adds that, to a degree, such hesitation may be understandable. “Some agencies that have purchased and implemented e-discovery technologies are realizing that their internal processes and skill sets do not sufficiently support all of the capabilities of these tools. As a result, legal professionals may lose confidence in these tools, which can undermine efforts to streamline and improve discovery processes.”

Engaging end users—the legal staff—during all phases of the technology selection and implementation process, and addressing support needs on an ongoing basis can help CIOs increase the overall acceptance of e-discovery tools and processes. “The agency will likely save money on litigation costs, and the legal and IT teams may spend less time reacting to data issues,” says May.

Tools and Techniques

The exponential growth of ESI in both the private and public sectors has led many organizations to embrace e-discovery technologies and processes that are somewhat newly minted. “It has taken a while for e-discovery technologies to blossom in the market,” says May. “Five years ago, organizations were using tools designed for human review. Today, we have reached the point where they are using technologies and approaches like predictive coding and technology-assisted review that are designed for use in legal discovery.”

Unfortunately, in some organizations, many of these systems’ capabilities may not be fully understood by end users. “CIOs and their teams often look for technologies to solve specific problems without first consulting legal staff,” observes May. “As such, there can be a communication gap between legal and IT that undermines user adoption of and confidence in new tools. For example, predictive coding is well regarded in the software industry, but our survey found that only seven percent of respondents have used it.”

May suggests that to bolster user confidence in e-discovery systems and processes and make legal counsel feel more supported, CIOs consider the following:

Develop an in-depth understanding of the discovery process. E-discovery is not an IT challenge to be solved. Rather, it is part of a legal process with set guidelines, requirements, and timelines. By working closely with legal staff to understand their specific needs, development teams can design approaches and tweak technologies in ways that can streamline the entire discovery process. “When counsel believe they have technology that supports their needs and mitigates the considerable legal risks associated with managing ESI, they are more likely to embrace it.”

Involve legal in e-discovery pilot programs. While it is important to thoroughly vet prospective e-discovery technologies before selecting one for deployment, CIOs and their teams should understand that data sets used in testing could be part of a future legal action. “This means that the pilot program itself could potentially become discoverable,” says May. “If legal is kept in the dark about how IT is using ESI, counsel could end up making a representation before a judge that is not based in fact.”

Finally, May stresses that CIOs have an opportunity to formalize and elevate the role they play in the legal defense of their organizations. “Supporting e-discovery is part of the CIO’s job description. When the legal department understands and feels good about what IT is doing, and the two groups work in conjunction, it will likely be significantly easier for counsel to do their jobs.”