Before modern technology, companies had all their important information written down on paper, and discovery for litigation involved handing over hard copies of documents and files. Then the world went digital and everything changed. Now there are e-mails, audio files, and social media to take into account as well as electronic documents that indicate not only the changes made to content but who made them and when. All of that has made discovery more complex.
“The type of information companies keep has changed as well as how and where they store it,” says Marta Beckwith, vice president of legal at Aruba Networks. “And the amount of information companies keep has skyrocketed.”
A small but rapidly growing technology company headquartered in Sunnyvale, California, Aruba Networks provides network access solutions for companies and educational institutions that offer mobile access to customers, employees, and students. Think of when you use a hotspot in a restaurant to check your e-mail; Aruba Networks provides the technology that lets you do that—namely, connecting wirelessly to the Internet. “People often want to bring their own electronic devices to work or school rather than being limited to a particular device,” Beckwith says. “Aruba Networks offers solutions that maintain security within the network while letting people use their own devices.”
Beckwith handles primarily litigation and disputes for the company. But with a small department, everyone pitches in wherever they’re needed to get the job done, which can include tasks such as handling contracts or working on securities filings. She is also responsible for the legal side of electronic discovery (e-discovery) and works closely with the IT department on that function.
Now that so much information is stored electronically, e-discovery is playing an increasingly important role in litigation of all types—from patent cases to wrongful terminations to product liability suits. “At root, e-discovery is like any other discovery,” Beckwith says. “But the problem is that companies are now keeping astronomical amounts of information. So discovery might involve hundreds of thousands of e-mails—or source code for a single product that includes huge volumes of data. For example, someone just returned the information collected for a lawsuit from before I joined the company, and it took up seven hard drives!”
Today, information may be stored on a company’s server or many servers, but it might also be found on laptops, cell phones, tablets, or in the cloud. “The big issues with e-discovery are tracking down where and how relevant information is stored and dealing with the sheer volume of information,” Beckwith says.
With such large quantities of information potentially subject to e-discovery, those in charge of collecting the information have to keep two important factors in mind—attorney/client confidentiality and relevance. “You have to try not to inadvertently turn over information protected by attorney/client privilege,” Beckwith says. “Even though a person is identified as a key custodian of important information, not every e-mail or document of theirs may be relevant to the case, so you have to find a way to search for those [emails or documents] that might need to be produced.”
Ideally, both sides will agree on who the custodians of important information are and on the key search terms to use to find relevant information. “Of course, in some kinds of cases, one party is really looking for a needle in a haystack,” she adds, “so they won’t agree to reasonable search terms in advance. But it’s always worth exploring near the start of a case.”
Beckwith noted that discovery and e-discovery at Aruba Networks used to be done on an individual basis for each case. “But we’re growing, so we’re examining how to best organize and manage information to meet both litigation and business needs,” Beckwith says. “If the same type of knowledge is asked for repeatedly, we want to find an easy way to access it when it is needed, rather than going through the exact same collection process every time.”
When choosing outside counsel to help with e-discovery measures, Beckwith is looking for long-term partnerships. “We look for someone with the ability to work with us efficiently on e-discovery and in ways that make it easier the next time down the road,” she says. “Traditionally, you give outside counsel a ton of data—then you never hear back from them on what was useful unless the case goes to trial. We want things to be much more interactive now so we can be more efficient the next time.” As Aruba Networks continues to grow, so will its body of information storage, making her role and the procedures she implements now tantamount to the business.