E-discovery: Many tools exist, but also many questions

Many tools exist that can help companies manage electronic documents in compliance with court rules, but some attendees of an electronic discovery conference this week said they don't trust all the technology.

Several technologies, such as e-mail archiving software, can help reduce risk and manage costs associated with e-discovery rules, vendors and other advocates said Friday at the Advanced E-Discovery Institute at the Georgetown Law School in Washington, D.C.

But Robert Eisenberg, vice president of e-discovery consulting at Capital Legal Solutions of Falls Church, Virginia, raised concerns about technologies like software that manages document retention and litigation workflow. "I don't want to sound like a Luddite, but I actually think there's a danger on relying on tools that are supposed to be doing things that you're not monitoring," he said.

Many companies are looking for the Holy Grail of technology that takes care of e-discovery issues without much human intervention, but often what's needed when a company is facing a lawsuit and needs to track down information is face-to-face contact, Eisenberg said. "The convergence we need is a convergence of grey matter, the way people think of an existing technology, rather than looking for that Holy Grail," he said. "There's a danger in even looking for it."

In some cases, companies or lawyers won't be able to explain how e-discovery tools work in court, he added.

But others on a panel discussion about e-discovery technology said those tools can help companies manage electronic documents and e-discovery requests.

Most panelists endorsed e-mail archiving tools, even though most of the audience members indicated that their companies or law firms didn't use archiving software. Archiving software can help companies store e-mail in one location, instead of across multiple desktops, and can schedule e-mail messages for deletion, said Andrew Cohen, associate general counsel and vice president of compliance solutions for EMC.

For many large businesses, e-mail archiving technology makes sense, even though setting up an archiving system can be expensive, Cohen said.

E-mail is "really hard to delete when the e-mails end up on everyone's desktop," he said. "This stuff is flying around the enterprise at the speed of light."

But one audience member questioned if e-mail archiving can end up hurting businesses facing lawsuits if they don't set up the auto-delete feature. Many companies, facing new federal court rules on e-discovery approved by the U.S. Supreme Court just a year ago, may end up saving everything, the audience member said. "You never get to the point where you delete anything," the audience member said.

But if companies have a deletion policy and they follow it, they're safe under the new rules, said Herbert Roitblat, cofounder of Orca Tec, an e-discovery consultancy in Ojai, California. "You need both a retention and a destruction policy," he said. "If you don't do it right, you're not going to get any benefit from it."

Another technology that won some support was automated computer forensics tools. Automated forensics tools can save the cost of hiring expensive forensics collectors, and can keep computers online while investigations are ongoing, Eisenberg said. Old style forensics investigations can be "disruptive and demoralizing," he said.

Roitblat also made a pitch for tools that search and group documents when corporations are required by courts to save information. "The days of going through page by page by page ... those days are gone," he said. "Nobody can afford it."