Synopsis Part 1: The More Things Change, the More Legal Discovery Does NOT Stay the Same
eDiscovery Spotlight: Interview with Johnnie M. Jackson, Jr, former VP and General Counsel for Olin Corporation and currently Lead Director of the Advisory Board for ESI Strategies, New York, NY (Part 1 of 3)
By K.E.H. Polanski writing for dcig.com
Mr. Jackson, called Johnnie by just about everyone, is a practicing attorney and consultant working out of Stamford, CT. He provides training and advises private and public corporate clients on a variety of corporate governance matters. Johnnie has an extensive background in corporate law, litigation and law department and board management, having served for 23 years in various legal advisory capacities at Olin Corporation (OLN:NYSE) after having served in the military and practicing in a private law firm. Johnnie, among other things, is now Lead Director of the Advisory Board for ESI Strategies, a small NY consulting and email archive monitoring practice specializing in helping IT and legal teams through the maze of what is required to be “litigation ready”. Johnnie has his JD from the U of VA, MBA from Tulane, and a BA from Wake Forest.
Kelly: As IT continues to put more and more business records online, does it seem to you that the more things change the more they stay the same when it comes to legal discovery?
Johnnie: Well, not really. Although the underlying legal demands are the same – “give me what you have that is relevant to the lawsuit” – today’s challenge is greater and the way that companies and other defendants have to respond is vastly different. Also, the number of documents that are available and need to be managed is far greater than ever before. Technology has made some things easier, and some things more difficult.
Kelly: Can you give me an example of how technology has made things easier and more difficult?
Johnnie: Technology has impacted the very nature of how we communicate. It’s easier, sometimes, to email a message to the person in the next office rather than walk over and deliver it in person – and that creates a “record”. It’s also easy to cc the world and attach all kinds of documents to a message. The volumes of email in a large organization are staggering and they continue to increase. All the hallway conversations that are now reduced to emails create fertile ground for opposing lawyers to develop during discovery and can possibly increase a defendant’s litigation exposure and risk.
Kelly: That brings up an interesting point: there seems to be two theories for data retention when it comes to legal discovery. One theory says retire as much as possible, so that you get rid of any smoking guns. The other says to keep everything, because it can prove the company’s side of a case. Which way do you lean when CIO’s ask you which theory they should put into practice?
Johnnie: It depends. It depends on a lot of things including the industry a company is in, the type of data they have, their regulatory compliance obligations and their litigation profile. In most instances, the General Counsel (GC) of a company oversees their records retention policy. There is no need for a company to keep records but for a regulatory requirement or where the record is relevant to a pending or threatened litigation or investigation.
It is important that the GC and the CIO talk to each other about the current state of their records retention and about the technology involved in keeping and managing electronic data [and ask questions like]: How long is the company’s email retention policy? Is it enforced? How does the IT automatic delete and recycle system work? The GC and the CIO must both be pro-active and are constantly presented with decisions where they have to weigh both cost and risk.
Part 2 and 3 of DCIGs interview with Mr. JM “Johnnie” Jackson will appear later this month.
If you would like to communicate with him directly, he can be reached at jjackson (at) esistrategies.net or in his Stamford, CT office at 203-353-9493.
DCIG, Inc publishes weekly interviews with legal professionals; click here for more eDiscovery interviews or sign up for the feed.