Contrasting Views at LegalTech

Once again Index Engines had a strong showing in NY at LegalTech 2011. With an enticing announcement around our new cloud-based tape discovery service, as well as a partnership announcement with LeClairRyan, our booth was hopping.

On the first day of the conference we were visited by the litigation support team from a global energy firm. They approached us and quickly stated, “Thanks for killing the burden argument!” We spent some time with them discussing our automated approach towards identification and collection of previously difficult to access ESI, specifically data residing on backup tapes. They understood the impact Index Engines technology has had on the market, and how the courts’ knowledge of this technology has served to erode the burden argument around this previously inaccessible media.

Ironically, on the second day we were presented with a contrasting opinion. A second global energy firm approached our booth and staunchly maintained the validity of the accessibility argument. They stated that their legal counsel has instructed them to not perform any discovery of legacy data residing on backup tapes. They basically hide behind the burden argument and are hoping to not face a litigator familiar with Index Engines direct indexing technology. Ignoring the impact of technology is a risky proposition. Technology moves forward and changes the game. Not acknowledging this exposes organizations to potential fines and sanctions when identifying and collecting ESI.

It was interesting and surprising to see the wide spectrum of attitudes about technology and litigation support – especially within the same vertical industry. Some organizations are sticking their heads in the sand and hoping to maintain the status quo, while others are getting proactive and mitigating their risk. Given that eDiscovery sanctions have reached an all time high it would seem that denial about eDiscovery and the courts opinions on it are clear. Revisiting the naysayer’s opinion of the burden argument at LegalTech 2012 promises to be very interesting.