by Robert D. Brownstone
You know it's true: IT folks are from Mars, lawyers are from Venus. And since both groups are infamous for their acronyms and jargon, getting them to work together during discovery can mean interplanetary mayhem. That's why a translator is often needed when attorneys and techies collaborate to tame the wilds of electronically stored information (ESI)-and especially when someone needs to explain things to the client.
Consider the word archive
. While its everyday meaning-information maintained for historical reference-can seem straightforward enough, archive
in the ESI universe can mean either a backed-up set of an organization's data, or the emails stored somewhere other than in people's active mailboxes.
Furthermore, the term can have additional connotations. In the backup context, archive
can be a verb for the arcane practice of copying some or all of an organization's data into a storage format (until recently, that meant onto tape) from which it can be restored, typically after a disaster. The term also can refer to live data kept in "near-line storage" that is available through a relatively easy connection to the company's network. With regard to email, archive
can refer either to an automated, companywide repository of employees' older emails; or to email that an individual manually copies to a personal storage file (in Microsoft Outlook, this would be a .pst
Sometimes, discovery can go on for months before the key players realize that they never had a meeting of the minds on this word. The legal team thinks it has been processing and reviewing all emails collected from live mailboxes, backups, and
.pst files; the CEO believes costs were kept down by addressing only live mailbox data; and the techie is proud that he followed directions by collecting only emails from .psts on shared network drives.
It can be difficult enough to resolve the in-house squabbles and finger pointing. But then you need to convince the opposition that the mistake that made re-production necessary was innocent; and you must maintain your credibility before the judge. Plus, courts often treat emails and backups in diametrically opposed ways. Emails are presumed to be discoverable if they contain relevant information within a pertinent time frame. But backups are presumed not
discoverable until the requesting party shows good cause.
Mixing up enterprisewide data with email backups during discovery can lead to inefficiency, spoliation sanctions, and confuse your client about the risks and benefits of various e-discovery decisions. At each stage, a misunderstanding can jeopardize effective communications in written discovery responses, meet-and-confer correspondence, and status conferences at the courthouse.
Similar confusion can surround any number of terms used commonly by lawyers working through discovery, by IT staff trying to get a job done, and by clients running the company. The trick is to be as specific as possible when discussing ESI. When in doubt about an acronym or technology process, ask. An effective dialogue is pivotal to successfully navigating the e-discovery universe-and to winning your case. Toward that end, we've collected a variety of common ESI terms that can mean different things to different players.
Robert D. Brownstone, the law and technology director at Fenwick & West based in Silicon Valley, is a nationally recognized expert on electronic information management, security, and discovery.