Editor: What technologies would a new general counsel look to in setting up a legal department? What are the priorities?
Harris: In addition to up-to-date office productivity software, for most legal departments an efficient matter management tool is a prerequisite. The next priority to consider should be applications to ensure the organization is complying with its preservation obligations. The selected application should be able to help identify relevant custodians and repositories and keep track of steps taken to preserve electronically stored information (ESI), such as issuing notifications, tracking responses, sending periodic reminders and ultimately lifting legal holds.
Behnia: There is truth in the old saying "You can't manage what you can't measure." New general counsel should focus on management software that will provide transparency into resource allocation, knowledge management, outside counsel performance, monitoring and reducing legal spend, and ensuring efficiencies both internally and externally through Collaborative Accountability Applications. Collaborative Accountability Applications combine Matter Management 2.0, electronic billing & bill review, and electronic discovery into one simple low-cost platform so that a new general counsel doesn't have to choose or prioritize just point solutions.
Bailey: Today, content control and compliance capability is key for general counsel. A cost-effective option to achieve this is a component of DocuLex's Archive Studio, WebSearch, which enables all email to be saved on an organization's server, with all body and attachment content organized and archived to assist in compliance with regulations including HIPAA and Sarbanes-Oxley.
This accomplishes the goal of mitigating information loss and subsequent security risks in real time, with complete information retention throughout each email's life cycle regardless of any deletions at the PC level. The automated process significantly reduces IT operations time and expense.
DocuLex Archive Studio is available in both site-installed and software as a service (SaaS)/cloud computing configurations.
Kirtley: First are basic technologies that foster legal department communication with the business units it supports. These tools, often platforms or portals, are utilized by inside and outside attorneys, but directed to the business consumers of legal services as a vehicle for demonstrating value. This helps align legal strategies with business strategies and increases transparency between attorneys and business partners.
Additionally of interest are the technologies that reduce the operational burden and cost of corporate compliance. Centralized and automated technologies can reduce the overhead costs associated with the manual-process intensive ways organizations may currently have in place. Further, these systems may help reduce actual litigation costs. By gaining insight into the trends of compliance issues, steps can be taken to proactively manage them before they turn into potentially significant legal issues.
Also worthy of continued attention are the tools that reduce the cost and risk associated with electronic discovery. Specifically, these tools should support the most appropriate, risk-adjusted, mix of in-house and outside e-discovery resources. These could involve tools that facilitate litigation project management, legal holds, document collections, review, or production (to name just a few).
Editor: Please share with us your thoughts about building a strong collaboration between the legal department and the company's IT people. Are there pitfalls here, say, turf issues, that must be clearly defined before collaboration can work?
Harris: Legal and IT are the core building blocks of most discovery response teams. As such, strong collaboration between the two departments is essential. When an organization receives notification of a lawsuit or a regulatory investigation, one of the first concerns raised by the legal department is whether or not the organization will be able to successfully and effectively respond to a request to produce potentially relevant ESI. Often, the initial response is a collective wrenching of the gut, particularly in the absence of having an established, interdepartmental team to manage the e-discovery demands.
As with any process that demands team building and collaboration, creating a discovery response team can be fraught with difficulties. Getting it launched can take some finesse. Consider that the core of this team will be representatives from departments who speak different "languages" and whose goals are not necessarily the same. For example, legal tries to preserve broadly to ensure legal compliance, while IT actively looks at options for data destruction or reduction. These objectives don't necessarily match when legal hold obligations are in place. Response teams must be built around the common understanding and business needs of both of these business requirements.
Behnia: The most technically efficient legal departments are the ones with dedicated Legal IT reporting to the general counsel instead of the CIO. Legal IT is a hybrid function of seasoned IT professionals and legal consultants who understand the company's industry and law equally as well as the technology that supports them. This structure cuts out the middleman in translating requirements to technology and ensures that the legal department is serviced with the most cost-appropriate technology in a timely manner without the constraints of corporate IT policy. Does this model work? In our experience we have never seen companies with legal IT change to a centralized IT model. It works.
If your organization does not match this profile, don't be discouraged. The next best alternative is to have a director of legal operations reporting to the general counsel with a strong technical background who can translate legal department requirements, establish service level agreements and partner with corporate IT. This multidimensional person is out there, and a vital link appreciated by both IT and the general counsel. However, even the most seasoned legal operations directors will have to negotiate turf, especially on topics such as records and e-discovery.
Bailey: It's vital. Increasingly we're seeing strong ties between legal and IT departments, primarily due to shared objectives. No real turf issues exist; problem-solution situations and each department's desire for preservation of their organization's intellectual property dictates a "let's work together" unity.
Another element of collaboration is between all staff involved with corporate counsel and the need to share information and secure input in real time on issues as they arise. Eliminating silos of information is a cornerstone of modern knowledge management and a particularly useful ability to corporate counsel.
Convenient colleague collaboration is an elemental ability of Archive Studio, which provides easy information access to people working on projects in-house or remotely. The browser-based, information-imparting content-management software facilitates the capture of paper and electronic documents, OCR enabled and indexed for organization either in their native formats, such as MS-Word or PDF. Permission-based access is assigned to user's colleagues to add input, check out documents for reuse or just to view information an organization needs them to see. Any added content is monitored to track documentation revisions throughout the project's life.
A permission-based Shareportal is provided for users to access information to securely share content and collaborate with third-party individuals or organizations without user logins. The portal can be utilized for sharing large or zipped files with outside vendors, customers and business associates without email firewalls, ftp and faxing. Automated expirations settings are added to provide a self-management effort of eliminating temporary access to invitations, files and folders.
For additional information on Archive Studio Content Management Software and to request a convenient online program demonstration visit www.doculex.com.
Kirtley: The primary areas of contention between legal and IT are likely to be in electronic discovery, records management, and data retention. In most cases legal is the "owner" from a policy perspective, while IT is the "owner" of the tools and process execution. The solution is clear cut roles and rules.
There will obviously be overlapping responsibilities, so it is imperative that there is clarity around communication, authority and responsibility for tasks. This will be most successful in organizations in which both legal and IT work together to support business units. There are few unbending rules as to the allocation and mix of responsibilities in these areas; rather they should reflect the culture and context of the overall business environment.
Published March 1, 2009.