Goggles offer "I" Protection Missing in EDD
When I read about Google's new "Mail Goggles" utility, I wondered if the folks in Mountain View were playing one of their famous April Fools Day pranks out of season. Google Goggles (yes, like protective eyewear) requires you to rapidly solve five math problems before you can send drunken e-mail on Friday and Saturday nights. If you get stinking and stupid on a different schedule, you can adjust the program to your personal Oktoberfest. You can even set the level of difficulty, in case you work on Wall Street and numbers aren't your strong suit.
Imagine that, a breathalyzer for e-mail!
What does this have to do with E-discovery? I thought you'd never ask. Read on....
For a long time, I've argued the need to restore the "power of place" to ESI, especially e-mail. The power of place is what made discovery so relatively easy in the days before personal computing. Back in those ancient days, when dinosaurs roamed the Earth and male lawyers wore vests (heckfire, I miss vests), requests for production didn't require you to amble from pillar-to-post looking for every document that contained particular words. Instead, you went to a file room, a cabinet, drawer and folder to locate material responsive to the request. You didn't look in every drawer because you didn't have to: information had a place, and you kept it in its place.
Before you hop back into Doc Brown's DeLorean, stop by the copy room circa 1985. To make a photocopy, you have to key in a matter code. It was a minor pain, but it greatly simplified cost accounting and the powers-that-be didn't mind a little transactional friction if it turned the copy room into a profit center.
Fast forward to the waning days of 2008. Corporate America's pervasive, unbridled use of e-mail insures that the most relevant and revealing evidence in many cases smolders in someone's electronic Inbox. Worse, lawyers and clients seeking advice so litter everyone's inbox with privileged and confidential communications that an estimated 75% to 90% of e-discovery costs go to paying lawyers to be sure privileged e-mail isn't produced. Those aren't my numbers--I heard them last week at an EDD symposium in Denver--but if they're even close to accurate, shame on all of us with Esq. after our names.
If only companies could reliably assign certain e-mail a place when it's transmitted. We wouldn't need many cubbyholes to slash review costs, maybe just "personal" and "privileged." What if you couldn't send a message before you characterized it within the company's data taxonomy? Items tagged as "personal" aren't stored at all, but a copy is automatically forwarded to the employee's designated personal account. Items tagged as privileged are segregated and reviewed by counsel when the subject of a discovery request. The rest doesn't go through any privilege review, but is produced under a clawback agreement, its responsiveness determined largely by lower cost mechanisms meeting Victor Stanley standards.
Remember, doing it this way saves the company millions and delivers an immediate payback in terms of organization and efficiency, so there's plenty of incentive to do it right.
So here's the Google Goggle e-discovery question: Is a drunken e-mail on a Saturday night the only place where a little transactional friction may save the day? Doesn't the desire to keep secrets (especially the attorney-client privileged kind) and the horrific cost of ginning out those secrets require we do more than click "Send" now and worry about it later?