Earlier today, in my article about Canadian e-discovery (see Lessons from Applied Discovery Proportionality panel in Toronto ) I passed on this advice from the panel there:
A large organisation will not be able to say any more “we cannot restore it because it is not proportionate”. That is like saying “we decided not to keep a filing cabinet”. One should not run proportionality arguments about something one could easily have done. One will not be able just to say “I cannot find them in this morass” because the court will say “You are expected to have a system for this”
I then pointed out the similar message from what I see as the most important section in HHJ Simon Brown QC’s judgment in Earles v Barclays Bank (a message which does not, of course, apply only to banks) :
One expects a major high street Bank in this day and age of electronic records and communication with an in house litigation department to have an efficient and effective information management system in place to provide identification, preservation, collection, processing, review analysis and production of its ESI in the disclosure process in litigation and regulation.
This is exactly where Symantec sits in the discovery process with its well-known Enterprise Vault, whose web page says that it:
enables users to store, manage, and discover unstructured information across the organization… and … helps customers deduplicate information at the source to reduce costs, delete information confidently and discover information efficiently.
… and that its Discovery and Search functions give
roles-based access for legal users to search, preserve, review and export electronically-stored information efficiently.
This is exactly what is meant by those who argue that the key to e-discovery lies in the way an organisation looks after its own data. If as a software company you already take responsibility for the archived content – the e-mail, electronic files, SharePoint, instant messaging and databases – of many of the world’s largest corporations, you have an obvious role in the e-discovery process, for the reasons given in my quotations above.
Symantec has recently concluded a survey of 5,000 EMEA lawyers and legal professionals, both in-house and external, across 10 countries. I have not absorbed it all yet, but the conclusion which stood out for me is that there is still a very large gap between respondents’ top-of-the-head reaction to questions about their preparedness and the reality once their detailed answers are analysed. This is consistent with the results of surveys by, amongst others, KPMG and Recommind over the last twelve months. One might have hoped that the interim would have seen either a less confident anecdotal reaction or (and preferably) evidence of movement within companies to tighten up their systems and to have in place the “efficient and effective information management system” referred to by Judge Brown in the Earles decision.
I look forward to learning more about Symantec and Enterprise Vault. Meanwhile, for the reasons given above, they are a welcome addition to the e-Disclosure Information Project.