How to Master eDiscovery
HB Gordon, eDiscovery Analyst, Legal Affairs, at Teva Pharmaceuticals US joins Pharna IQ to discuss Mastering eDiscovery and Information Management Strategies.
Pharma IQ: What do you think is the most important topic in eDiscovery today?
HB Gordon: I believe it’s still the key one, which is finding and providing to outside counsel all relevant documents needed for litigation matters. And so being able to search your enterprise for the relevant documents, understanding what you have, where it’s located and how to best collect it continues to be a very important topic, a very important challenge for all companies, not just pharmaceuticals.
Pharma IQ: And what are the challenges associated with eDiscovery and Pharma and Biotech?
HB Gordon: Well, we have a lot of documents, we have huge volumes of documents whether it be for clinical trials, conversations or discussions regarding research and development, patent litigation and so on. And the volume of documents you’re dealing with in any particular litigation can, in some cases, overwhelm not only the counsel that needs to review them but also expand your costs involved in litigation tremendously.
Pharma IQ: I understand that there are a number of cross border privacy and data protection issues. How do you approach this issue between the US and Europe for example?
HB Gordon: Well, for most companies it comes down to having good strong policies in place with regards to privacy and what the individual employees can expect from privacy in their company. And those policies, of course, need to be checked, embedded with counsel in the individual countries. And sometimes depending on the country even individual counties or sub states of those countries such as Canada with its various territories and so on. Where individual areas or countries have very different laws and you need to make sure that the policies you’re putting in place and the understanding that you’re giving to your employees regarding policy is such that documents are the company’s documents. And if they need to be collected for litigation purposes that they can be. The flip side of that also is the understanding and the creation of a good IT infrastructure such that the documents in some cases don’t even reside in those countries. I’d say there you’re a multinational corporation, you choose to set up your email servers or your file shares in a particular country where the privacy laws are more appropriate to what you need to do in order to easily access them for potential litigation.
Pharma IQ: What is the biggest gap today between eDiscovery vendor offerings and what legal end users need? And have you noticed any discernable trends?
HB Gordon: Unfortunately there are still some vendors out there that will sell you what we call in IT paper ware. In other words they’ll make you promises and can’t deliver or they’re talking about the next generation of their software, the next whizz bang functionality that their software can do. And unless you see it running when you’re out there trying to purchase these things to make your environment better you run into problems. Because you go to use a piece of functionality or a certain capability and you find, oh, it’s not in the software yet, oh that is still a year away or, oh, development’s working on that, we’ll get back to you on that. And meeting those expectations and understanding what your needs are and what you’re getting from the vendors today in their software, the product that’s being installed on your equipment is key. You have to make sure that what you’re buying is what you’re going to get and not a bunch of promises for something down the road. That I find constantly still even with some of the biggest vendors, they say one thing and then they don’t deliver. And then you’re left holding the bag and you’ve got functionality that you expected to be able to utilise and it’s not there. It’s not in the software, it won’t be there for months, years maybe.
Pharma IQ: And do you think that the bio pharmaceutical industry is making enough progress with eDiscovery?
HB Gordon: I think so, I think people have understood now for a few years the change in the rules for eDiscovery and so on, that you have to get a handle on your documents, you have to understand where your data is, how you’re going to manage it, when you can get rid of it. If you have good records retention records in place and are beginning to fully understand what they’ve got, where it is and how to produce it for litigation. The problem is everybody understands that they’ve got lots of this stuff and the volumes are what is really starting to hurt companies. That they need to manage the volume of their data and make sure their employees are properly trained around managing data and information and have the appropriate policies and procedures in place for identifying business records versus no business records. And if it’s a non business record and it doesn’t need to be kept for litigation purposes, business purposes or regulatory purposes, then it should be destroyed and removed from systems to free up disk space. Free up storage resources and to reduce the cost of litigation for the unresponsive documents that they are.
Pharma IQ: With millions of Twitter and Facebook users what role is social media playing in eDiscovery?
HB Gordon: It can be a real gotcha, in other words if a company doesn’t have good policies around that and you find out that there were conversations going on, the instant messaging or texting or Twitters and so on, and if a policy isn’t in place telling the employees to not use those tools or use them in a very structured way within the business walls, if you will, then you open yourself up for discovery problems. You may have to go to that employee and subpoena their carrier and get information from those services because conversations were going on via that media and that medium that may be discoverable, unfortunately. And so companies should really think about what is the business value of allowing their associates to use those tools, if indeed they consider them tools and not just outlets for other non work related expression. And make sure that the employees understand not to use them for any creation of anything that could be considered a business record that may come down to need to be collected and searched for eDiscovery. You want to avoid that at all costs. It’s all about trying to control your eDiscovery costs, control your various litigation costs, which would include collecting, producing, reviewing and ultimately sharing with opposing parties. You want to get that volume down as small as you can and by limiting the use of these types of tools where they may not add real business value then companies should be doing so through policy.
Interview conducted by Andrea Charles
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