This week, lawyers for Goldman Sachs were roasted in a London courtroom for submitting a £1million ($1.7m) bill for eDiscovery work for a claim worth £8.8m ($15m).  Part of the issue was that the bill was unitemised, but the main problem was the sum itself, described as “ludicrous” by Judge David Mackie for work done when there had not even been a trial.

The excuse? According to a report in the Financial Times, Rebecca Loveridge, the Fountain Court barrister representing the bank, said that Goldman Sachs is “vast”, presumably meaning that it is difficult to find lots of data across a large organisation.  Tellingly, it is reported that the judge responded “There’s no reason why, if Goldman Sachs describes itself as vast, that it should be able to recover vast sums for the exercise of disclosure”.  

The instructing solicitors were White and Case, and you rather feel that Miss Loveridge should have been allowed to sit down, and let the responsible partner take her place.  No doubt he or she was thinking that in fact it is sometimes a good thing that solicitors are not automatically advocates in the High Court

There has been a lot of press in the UK about reforms designed to speed up litigation, make it more cost-effective etc etc, but at the end of the day, if the procedures are not in place to make that happen, nothing can change.  Making rules to say that the sky is no longer blue but purple does not make it happen, unless you take steps to implement it.

Anyone who is involved in eDiscovery knows that a huge challenge is collection, ie  finding the data you need to analyse.  Undoubtedly, there is then a lot of machine and human intelligence that can be brought to bear on that information to select what is disclosable, and potentially to find the smoking gun, but eDiscovery like any process works on the garbage in, garbage out principle.

Electronic data has gone from being a useful business tool to being an enemy.  Forget for a second the daily information overload that we all have in the form of email (as well as social media, IM, SMS etc etc). I’ll come back to that.

For a moment, consider the way most organisations have managed their data.  Expensive storage and a need to back up important information meant that data has quickly been archived off to physical media, usually some form of tape.  Rather than being recycled, a lot of those tapes have ended up in a box.  When the box was full, it was sent to a warehouse.  And those warehouses quickly fill up.

In recent years, we have seen multiple scandals in the financial services industry, stretching back in time. And the evidence is often on those tapes.  And regulators and potential litigants want access to them.  Because the companies don’t know what is on those tapes, they can’t destroy them, and so a slow, painful, and immensely expensive exercise is under way across the financial service sector to try to restore the tapes.  In some cases, the original storage technology no longer exists, so there is a need to reverse engineer the protocols used for storage.  In many cases, new warehouses keep being uncovered, and there are a lot of IT managers scratching their heads trying to work out what to do next, and who is going to pay for it.

Increasingly, backup is handled in a smarter way than it used to be with de-duplication and media rotation the norm, making this more of a historic issue.But how much of the today’s data is accessible in real-time, online? Email? Usually these days, and mainly down to increased regulation, email is centrally or regionally archived, and so can be accessed in a simple and programmatic way. Everything else? It varies, but for the most part, data lives in silos departmentally, regionally or randomly.  This includes IM (the backbone of investigating the Forex scandals), phone calls (my particular hobby horse), documents, structured data, SMS.  I could go on.

We’ve had a few stabs over the years.  EDRM and Enterprise Search are two previous incarnations, and now we are on to “Information Governance”. The same message each time:  Understand what you have, where it is, and how you access it and ultimately destroy it.  Sounds simple, but large organisations are set up in vertical silos.  No-one is responsible for “Information”, but you can be sure someone has a title with “Voice” or “Email” in it, and a vested interest to go with it.

Big Analytics relies on access to data, and there is a real push to understand what is going on in real time in organisations now.  But like eDiscovery, if you can’t find the data, you can’t know what’s going on.  

It is not the lawyers’ fault that there is a mess to be cleaned up:  It would be nice, however, if the client were able to provide the broom.

Nigel Cannings is CTO at Intelligent Voice (http://www.intelligentvoice.com)