We have all experienced either firsthand, through friends or family, or even through various media sources a parent's frustration in attempting to communicate with his or her teenager. Although both have been raised in the same household, speak the same language, and know in general the subject at hand, neither person truly understands what the other is saying. Both speak in jargon that is easily understood by their peers, yet falls on deaf ears of the other. What eventually results is frustration and misunderstanding between two people who really have the same basic interests. This, unfortunately, is the same scenario most business lawyers and corporate IT have found themselves squarely in over the past few years.

Why is it important that business lawyers and corporate IT communicate at all? Why is it so difficult for these two professional, educated, intelligent, and allied persons to communicate? What can be done to bridge this gap of miscommunication so that the two parties can understand and respond to the new issues generated by the dawn of electronic discovery and the amended Federal Rules of Civil Procedure (FRCP)? These are the questions the business lawyer of today must ask himself or herself to ensure effective representation of his or her corporate client.

Why Is Communication So Important?
In stating the obvious, communication is the cornerstone to any successful relationship. In the context of the instant scenario, the need to communicate is even more pressing due to some general factors:

• the voluminous amount of electronically stored information (ESI);
  
  
• the complexity of IT systems and ESI;
  
  
• the accelerated rate at which ESI is created and changed;
  
  
• the rapid development of new technology to house and manage ESI;
  
  
• the potential cost associated with harvesting and producing ESI; and
  
  
• the evolving case surrounding counsel's obligations regarding the identification, preservation, collection, and manner of production of relevant ESI.

Specifically, to understand why it is important that business lawyers communicate with corporate IT, one need look no further than the three main sources that dictate a lawyer's obligations: rules, case law, and regulations.

As to the rules, the amended FRCP (effective December 1, 2006), particularly Rules 26(a)(1)(b) and 26(f), dictate that counsel has a duty to identify and disclose any source, as well as the type, format, location, and accessibility of ESI that may be used to support or defend claims. Counsel's failure to do so can result in the inability to pursue claims, evidence exclusion, monetary fines, adverse instructions, or professional sanctions. These rules, along with the other eight rules that were amended to address ESI, have mandated that counsel have a working knowledge of the corporate client's IT systems to relay the same to opposing counsel in the course of litigation.

As to case law, the infamous Zubulake V is instructive. In Zubulake V,although counsel and IT "communicated," their understanding of "e-mail archive" was wholly different; counsel erroneously assumed that the term "archive" simply meant backup tape, when, in reality, the term referred to a series of active e-mail files. This miscommunication was not discovered until nearly two years after the contents of those files should have been produced to the opposing party, which resulted in sanctions and an adverse inference instruction. Further to the point, the court in Zubalake V went on to hold, as part of and defining counsel's responsibilities, that counsel must identify and notify all potential sources of ESI, speak to IT, and conduct a system search when issuing a litigation hold.

What is obvious from the above is that counsel now has obligations unlike any in the past and these obligations are directly related to the ESI maintained by counsel's corporate clients. Clearly, counsel cannot shoulder these new obligations on his or her own, for the sanctity of this information is protected by the corporation and outside the normal parameters of counsel's reach. In addition, even if counsel were given full access to the corporate ESI safe, more than likely the infrastructure and sophistication of the IT system would be well beyond counsel's ability to understand.

Ergo, it is imperative that the business lawyer have meaningful dialogue with the corporate IT person to ensure that his or her obligations are met and that the corporate client's legal interests are fully represented. Unless the business lawyer and the corporate IT person communicate effectively, the corporate client is exposed to sanctions, monetary fines, unfavorable legal decisions, and unwarranted business interruption regarding pending and active litigation.

In addition to the amended FRCP and case law surrounding ESI and counsel's obligations, there are approximately 8,500 state and federal regulations that impact corporate compliance and record retention. Some of the most notable are the Sarbanes-Oxley Act, USA PATRIOT Act, ISO standards, HIPPA, and SEC, NASD, and NYSE regulations. Considering that most surveys suggest that anywhere from 90 to 95 percent of a corporation's documents (not to mention e-mail) are created electronically, the manner in which these documents are maintained and managed becomes paramount in light of the multitude of state and federal regulations. Therefore, for the business lawyer, the necessity to communicate with corporate IT personnel arises long before litigation.

Unless the corporate IT person fully comprehends the "why" and "when" certain procedures must be implemented, he or she will never be able to correctly effectuate the requisite processes for document retention, identification, preservation, and collection. Thus, it becomes the onus of the business lawyer to communicate with corporate IT the specific legal parameters under which the corporate documents and ESI must be maintained. In other words, the corporate IT person is responsible for maintaining and managing documents and ESI, but how these responsibilities are carried out in light of legal requirements must be directed and communicated by the business lawyer.

Quid pro quo to the business lawyer's need to successfully instruct corporate IT, it is equally important for the IT person to have meaningful communication with the business lawyer. Corporate IT's perspective on how long and how much electronic information should be retained will likely be wholly different than what the business lawyer and the court, inevitably, expect. Corporate IT, as Denzel Washington requested in Philadelphia, should explain to counsel the IT infrastructure of the corporation "as if I am a four-year-old." Just as it is imperative for corporate IT to understand the ramifications of managing documents and ESI in a certain manner, it is equally as important for the business lawyer to comprehend the IT infrastructure. These two facets can only be accomplished through collaborative and effective communication between the business lawyer and corporate IT.

If one pauses to consider the effect of the amended FRCP, emerging case law, and governmental regulations in light of the increasing and dynamic nature of ESI due to continuing technological advances, the importance and necessity to efficiently communicate with corporate IT will become increasingly important moving forward. How ESI is maintained daily and stored in legacy has a different significance for corporate IT than for the business lawyer, but it is critical to the corporation that both transfer their knowledge and responsibilities to the other. Simply, the failure to communicate or resultant miscommunication between the business lawyer and corporate IT will negatively impact the corporation.

In sum, the business lawyer must effectively communicate with corporate IT to ensure his or her obligations, as set forth by the amended FRCP and case law, are satisfied and that the corporation is compliant with the various government regulations. In the same breath, it is imperative that corporate IT reciprocate the exchange of information and communication to make certain the business lawyer is entirely cognizant of the corporate IT infrastructure and ESI to represent the corporation's interests fully and limit its exposure to unwarranted litigation.

Why Is Communication So Difficult?
To wholly grasp the dilemma that surrounds the miscommunication between the business lawyer and corporate IT, and why it is so difficult for these two professional and intelligent parties to communicate, it must be remembered that the business lawyer thinks in terms of compliance and litigation while the corporate IT person thinks in terms of efficiency, maintenance, and disaster recovery. In addition to this basic premise, there are three critical factors that contribute to this struggle to communicate.

First, although for over a half-century the judicial system has recognized and dictated that parties exchange information through the discovery process in pursuit of their litigation, it is only recently that parties must identify, preserve, collect, and produce relevant ESI as part of their discovery obligations. Therefore, prior to the advent of counsel's obligations to produce ESI, rarely did the business lawyer and corporate IT have the occasion to communicate or interact. The business lawyer's communication with the corporate client was typically through in-house counsel and/or a corporate executive. As such, their familiarity with each other's responsibilities, obligations, and roles is novel and there is lack of trust due to unfamiliarity.

Directly adjunct to their personal unfamiliarity and equally detrimental to open lines of communication, the business lawyer rarely has the need to conduct discovery related to ESI, leaving him or her completely na*ve to the corporation's IT systems and ESI. Not being familiar with the source, location, and type of information that needs to be produced, as well as the gatekeeper of that information, will most certainly impede the business lawyer's ability to represent the corporation, thereby emphasizing the importance of counsel's communication with corporate IT.

Second, the language each utilizes in his or her respective job is vastly different. Specifically, the terminology and lingo each employs in his or her daily duties is completely different; and although the professional jargon of each is entirely acceptable within each individual's respective field, it is at the same time foreign to the other. Acronyms, catch phrases, and professional words commonplace to one hold no meaning for the other.

The business lawyer is comfortable with "legalese" that has no reference or place for the technical terminology IT personnel speak as a second language. What accentuates this problem further is that even though both parties are highly educated individuals, they oftentimes satirize the other's lingo, most likely as a defense mechanism to lack of understanding. This language barrier creates frustration, misunderstanding, and miscommunication.

Third, the manner that each performs his or her position creates an unwanted obstruction. Although each is accustomed to detail and intricacy, the business lawyer is comfortable with change and drafts along the way, while the corporate IT person sees a project with a precise beginning and end. Thus, when the business lawyer "communicates" his or her desires to the corporate IT person, their expectations of what the project entails and when it will be concluded most likely will differ.

Also, as above, unfortunately the two parties often deride the other's responsibilities in their profession, which of course leads to a breakdown in communication between professionals. "Snakes" and "geeks" communicating? Preposterous as the phrase sounds, it is the reality in which these two parties are often perceived and how they often perceive themselves.

When considering these three factors, it is easy to appreciate the predicament that the business lawyer and corporate IT personnel face in their efforts to communicate. That said, these barriers need to be broken down. Both the business lawyer and the corporate IT person must realize that these obstacles to communication exist and that unless they are overcome, the individuals will suffer and the corporation will be at risk.

Bridging the Communication Gap
The old adage of being "proactive as opposed to reactive" couldn't be more true when it comes to the manner in which the business lawyer and corporate IT go about bridging the gap of communication. Waiting until litigation ensues or a compliance issue arises is tempting fate and inevitably exposes the corporation to avoidable risk. Both the business lawyer and corporate IT must take the time and expend the effort to undertake the necessary steps to communicate effectively and in turn be litigation-ready and compliantly sound. Obviously, each situation is unique unto itself; however, the following are some steps to proactively address the communication gap between the business lawyer and corporate IT.

First, and foremost, both parties need to recognize the importance of communication with each other. In that recognition, the parties also must understand that there are barriers to effectively communicating, and unless those barriers are overcome, the prospect for personal and corporate failure is dramatically increased. Until the parties sincerely appreciate the importance of communicating and make a conscious effort to rise above the obstacles that inhibit its functionality, they will be relegated to reinventing the wheel every time a litigation or compliance matter arises.

For example, one of the greatest barriers often unrecognized is the time constraints each party operates under. Lawyers have either court-imposed or transaction deadlines that entail much preparation, drafting, unending edits, and coordination of staff to ensure the client is properly represented, while the IT person has daily, unplanned issues that need immediate response and that often delay planned projects. In other words, the parties need to communicate their schedules and responsibilities so that both understand the other's responsibilities and obligations.

Second, have the corporate IT person map the corporation's IT infrastructure, including where ESI is stored and in what format. Words may be the lawyer's stock-in-trade, but words without definition or relevance are meaningless. For the business lawyer to properly understand the corporation's IT infrastructure and ESI, he or she must be able to visualize and explain how and where it resides.

This may appear to counsel a simple endeavor, but every IT person understands this is indeed an arduous task. That said, once completed it is an invaluable resource for counsel in meet and confer conferences pursuant to amended Rule 20(f). In addition, this also will become the building block for lawyers to define and structure a litigation hold issuance in response to current or anticipated litigation matters and in preparation for defining what is accessible or inaccessible ESI pursuant to Rule 26(b)(2)(B) and deferring the corporation's costs associated with electronic discovery.

Third, in addition to mapping the infrastructure, corporate IT should create or locate a glossary of technical terms that counsel can refer to when reviewing the map as well as for subsequent discussions with corporate IT. Again, lawyers are disciplined in the art of document reading and will welcome a means to understand the foreign language of technology.

This simple tool not only will aid the lawyer in communicating with and understanding the IT person, but also will be a helpful tool in deposition or negotiations with opposing counsel during litigation or a business transaction.

Fourth, similarly, since IT likely will have no familiarity with the rules, case law, and regulations that lawyers and corporations are bound by, it is imperative that counsel provide a summary of the above in "layman's terms" so that corporate IT realizes and understands the various obligations. This will not substitute for actual communication and explanation, but rather will provide a foundation for subsequent conversations.

Further, this should not be a one-time instance. Each matter or litigation may very well entail a different area of law and, at the very least, different obligations as it relates to the IT person and staff. It is important for counsel to realize that unless he or she communicates the specifics of the instant matter, IT in all likelihood may proceed as previously designed in a prior matter.

Lastly, the parties initially need to meet frequently until each is comfortable with the management of the corporate IT infrastructure and ESI to be litigation-ready and compliantly sound. At first blush this may appear to be a superfluous task that will cause unnecessary expense and time commitment. However, "penny wise and pound foolish" is apropos, for communication is inevitable and to learn on the fly will most certainly expose the corporation to undue risk.

There is no question that once either litigation is pending or a compliance issue surfaces, the two parties will increase their communication to respond accordingly. However, with the initial conversations completed, the efficiency, timeliness, and completeness in which the communication and response are conducted will be greatly enhanced. To conduct a litigation hold or an internal audit is always an arduous task, but if all the parties are on the same page and understand their respective responsibilities, then the mission at hand is less of an undertaking and the corporation is less at risk. Early and informative communication between the business lawyer and the corporate IT person is the only means to truly be litigation ready and compliantly sound.

Conclusion
The importance of communication between the business lawyer and corporate IT cannot be overstated. The days of contacting in-house counsel or a corporate executive regarding the discovery mandates of a pending litigation and receiving a number of banker's boxes in return are a thing of the past. Business lawyers must now rely upon and trust the corporate IT representative to assist them in the identification, preservation, and collection of relevant ESI to comply with the newly amended FRCP and the obligations set forth by recent case law.

Further, to properly represent the corporate client, the business lawyer must undertake the difficult task of becoming intimately familiar with the IT infrastructure and ESI of the corporation. This task can only be achieved through communication with the corporate IT representative, for it is with this person that the requisite information regarding the above can be found. Finally, as previously stated, the business lawyer also must assume the responsibility of educator and communicator, for the corporate IT person also must come to an understanding of the legal obligations both counsel and the corporation face to better manage the manner in which ESI is stored throughout the corporation.