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One of the common themes I often hear from clients is that the legal staff and the IT staff just don’t speak the same language.  Well this is expected, given the different disciplines, training and cultures typically encountered, but why so much discord?

The answer hit me across the head while I was reviewing some of the Sedona working papers recently (http://www.thesedonaconference.org/publications). They are extremely valuable publications authored by experts in the field.  The article titled, “Preservation, Management and Identification of Sources of Information that are Not Reasonably Accessible”, from 2008, a decision tree is included to assist practitioners in determining their preservation obligations. 

Charts like these are great.  They help us “net out” hundred of paragraphs of text into a straight forward sequence of questions that must be discussed.  Consider a simple example scenario. 

Assistant General Counsel: “Associated with the hold request #745, we need to collect email for these 20 custodians for 2005 and 2006”

IT Person: “OK, we’ve got the 2006 email still online, but the 2005 email is on back-up tape”

Assistant General Counsel: “Well how hard is it to restore the 2005 email?”

IT Person: “Unfortunately, the way we archive the email requires us to restore everything first, so I’ll have to find a server with enough capacity, oh and we need to find a production window that won’t mess up our current back-up cycle, and, and, and…..

So the dialog goes on, with the general conclusion that the effort will be a pain in the butt, but can be done. 

Here is where things get tricky.  Lets revisit the Sedona chart – still the most articulate description of the decisions our Legal and IT folks should discuss – but a long way from answering the direct question the IT guy needs to know, “should I restore the 2005 email or not?”

Consider some the language embedded in the decision tree.

See, IT folks tend to think in binary terms (black or white, yes or no).  Legal folks have to deal with “shades of gray”.  And clearly these folks must work together to answer these questions. 

What Doculabs is seeing in best-in-class organization is a much tighter alignment between legal and IT.  This takes different forms in many organizations for example:  IT provides dedicated staff to the litigation support team; Legal designates a single lawyer to be the interface to IT and learn all of the IT jargon.  Thus having clear organizational alignment and a systematic processes are critical.  One better: these teams walk through a multitude of different collection scenarios proactively, effectively creating use-cases.  They can then discuss and answer the decision tree questions prior to an active discovery request, when they have sufficient time and resources to perform a thoughtful effort.