legal law forms

							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