Bridging the Communications Gap(s) June 6, 2007 Kevin L. Esposito, MBA JD Director – Electronic Discovery Pfizer Inc. Biography Kevin L. Esposito, MBA JD is currently the Director of Electronic Discovery at Pfizer Inc in New York. Prior to becoming an attorney, he developed and managed global technology support organizations for United Parcel Service for 17 years. He is a frequent speaker at technology, legal and records management conferences. He specializes in bridging the communications gap that exists between business people, technologists and lawyers. Kevin is a senior faculty member at the University of Phoenix, where he is author or co- author of courses related to both technology and The Law. He also served as Visiting Lecturer in Electronic Commerce at LaSalle University in Philadelphia. He maintains offices in New York and New Jersey. A Key Challenge For Businesses Information Technology from the Legal Perspective Legal From the Information Technology Perspective Business Transformation – 1990 to 2000 Business End End Business Integration Integration Operations Operations Finance Finance Consumer Consumer Dvlp. Dvlp. Svcs. Svcs. Goods Information Funds Integration Integration End End Business Svcs. Business Svcs. Operations Operations Consumer Consumer Dvlp. Dvlp. Finance Finance What Is Discoverable ? The Players Plaintiffs – Original Creators of E-discovery Weapons Shift the battle away from the merits to trying to create a perception of spoliation Use cost as a weapon to force concessions Switch to fights over use of overbroad preservation/protection letters Defendants – Uninformed and Unprepared Little understanding of internal processes Less understanding of IT processes Lack of reference or resistance results in large discovery costs Judiciary – Losing Patience No longer persuaded by undue burden arguments Not inclined to shift costs Focus on “reasonable process” The Team Members Lawyers – No Longer In Control Focus on non-legal issues have them stumped Don’t know how to articulate their needs Concerned about perceptions within and without IT – Don’t Know Their Own Strength Don’t realize the legal impact of “standard” IT actions Can’t articulate what they do or could do to assist Don’t deal well with carbon based life forms Business People – Want Both To Just Go Away Don’t believe that lawyers qualify as “life forms” Can’t understand why e-discovery is such a big issue Feel e-discovery takes their attention away from business Feel it’s “legal’s” problem to deal with What We Have Here… George Bernard Shaw was right Rosetta Stone can’t help Talk to WHO?? Talk isn’t cheap The blame game is fun Why don’t you know your systems? Why can’t you centralize? Why are you being difficult? The search for the “One Guy” A Dilbert Moment “Horses For Courses” – How To Approach One size does not fit all – all need to realize that Reasonability versus perfection – compromises will be necessary Scope and breadth shift with situation but preparation must be uniform No second chances Leave no functions out of the discussion – all have a role to play Legal Information Technology Business Managers Records Managers Initial Steps – Is Our House In Order? Who is in charge of records – formal and otherwise? Has legal had input into records management policies? If so – when? Should this be revisited? Are the policies enforced? How are legal holds implemented? How enforced? What is your email and instant messenger policy? How many records systems do you have? Collaboration tools and Workspaces? How many offsite vendors? Outside law firms? Do we have the right people to tell our story or do we need to groom them? Pitfalls to Effective Communication Lack of commonality in discussions Litigation and investigations are backwards facing – “we got rid of those guys” The need for a document is directly inverse to its number of appearances in your archives which increases stress The DaVinci Construct not in use Bad information in case decisions Recreation of data is rarely possible with confidence White Lies They’ll Tell you No one will ever ask for those _____ We don’t have the budget for those We don’t have the space for those It’s too complicated to combine data/systems/paper That will be handled by the usual business processes No need for new processes – they’re fixed by the new vendor/system Technically, Anything is Possible Strapping New Technology to Old Business Processes Decreases Value Cost Barriers to Communication Cost model is broken Wrong behaviors incented Cost per page, per gigabyte, per custodian Penalties for frequent use Who bears the cost within the team? Legal vs IT vs Corporate This Old House Effect Latest trend or gizmo provides relief Cost increases as time decreases (Stress increases, too) Finding Ways to Speak Just start talking Don’t wait hoping to meet “under better circumstances” Frequent communication helps to gain trust and improve perceptions Get creative – Find a way to convert issues Allegories aren’t just for children’s tales Correct stereotypes – CSI versus “Law and Order” Be respectful, but don’t stop the dialogue If all else fails… Invoke your deity of choice Learn WHY – talk and LISTEN to each other Assemble whatever fragment is available Develop a comprehensive story Immediately establish remediation plans Reinforce required feedback Rudyard Kipling and the Roman General
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