Originally from Electronic Disclosure in International Arbitration

At the recent seminar on Electronic Evidence and Disclosure in International Arbitration, one of the attendees challenged me on why eDiscovery should have anything to do with arbitration. He went on to say that, in his practice with arbitration clients in the UK, all he needed to do to prepare for a case was to interview the three to seven key people at the client and he would have everything he needed for his case.

In response, I shared a story that occurred ten years ago at a newly public software company for which I was the executive in charge of product development. Organizational development professionals have a saying: “No one person knows but the group does.” This saying acknowledges that, in today’s complex, information-rich corporations, it takes a group of people to understand what is happening and what has happened. Realizing we had to be careful recognizing revenue for a multi-million dollar contract from our largest customer that would be material in our financial statements, a group of ten of us worked for several months to ensure that all of the rules and regulations were closely adhered to. Imagine our surprise when the customer, a few months later, wondered why we would not send our software engineers to their work site in France to fix a problem. We let them know that capability was not a part of the contract. The customer then presented us with an email from the sales person committing to that capability. The end result was that we had to restate our financials based on this information. We realized that no longer could we rely on a small group of individuals to be compliant, but we had to include a search of all of our email and electronically stored information (ESI). The organizational development saying had to be modified to: “No one person knows, no group of individuals knows, but our computer systems do know.”

The amount of information that is flowing through even small companies today makes it impossible to rely on interviews to get at the facts of the matter, whether in litigation, compliance, investigations, or arbitration. To illustrate, the increase in ESI volume growth over the last five years, the storage on my home computer has increased from 100 gigabytes to 3 terabytes. To put this in perspective, 1 terabyte is equal to 1024 gigabytes and is the equivalent of 1000 trucks worth of paper if printed.