Could ECM save the American justice system?

Ralph Losey [1] thinks the combination of eDiscovery requests and the failure of business to adopt enterprise content management is killing the American system of justice. It's a bold stance, but Losey says it's more than hyperbole. And he is in a position to know from whence he speaks, as a trial lawyer with more than 30-years experience and a respected blogger who writes eDiscovery Team blog [2].

I watched him present as part of the 2nd Annual EMC Content Management Writers' Summit [3], this past Friday in New York City. Losey is a dynamic fellow and one of his main points was that American business was drowning in eDiscovery requests and they were ill equipped to deal with the sheer volume of information.

The whole truth?

Losey contends that the American justice system is based on rooting out the truth, and there can be no truth if you can't find relevant evidence. In fact, he wonders how this is even remotely possible given the costs of finding the evidence that could point to the truth. Losey says that Microsoft may be able to pay $10 million per lawsuit, but the rest of corporate America simply doesn't have such deep pockets. That means more companies simply settle because it's easier than finding the evidence to vindicate themselves and Losey thinks that's threatening the very foundation of the justice system.

Lawyers need to get up to speed

Part of the problem is that, as Losey says "most trial lawyers are Luddites," and the companies they represent haven't organized the information they have to make it easier on themselves in an eDiscovery process. And that's a dangerous combination."The problem is the companies haven't taken the time to understand the information they have and they can't find the information they need to defend themselves," he says.

Losey stresses that there needs to be a team approach. The company needs to have content management in place and they have to know how to use it. What's more, the lawyers have to be able to manipulate the data, to find what they need to defend their clients. Losey says even today, Harvard Law School [4] has no course in eDiscovery or computers.

Where we need to go

Lawyers have to become search scientists, Losey says, and companies need to do a better job of managing their information. That starts with the subject of this newsletter, content management, and it's time for companies to take it seriously. The costs of ignoring the problem are staggering for corporations--that will almost certainly be sued at some point--while large corporations face a constant barrage of lawsuits.

The answer isn't that complicated, Losey says. It involves using enterprise content management and tracking your information in a logical way. It also involves having a system of de-duplicating email before the litigation requires you to do it, to have an archiving system in place, and a methodology to delete emails and non-essential documents after a certain amount of time.

If corporations step back, buy the tools and make the necessary plans, they can be in a position to understand what they have, and reduce the overall volume by regularly deleting what they can. Losey could be right that the underlying notion of truth is being sacrificed at the alter of financial expediency. But who would have thought ECM could be the solution? Ralph Losey for one thinks it can. - Ron [5]