Last month I met with a technical team at a US government organization that has investigative and enforcement authority. The topic of our meeting was to discuss current developments in electronic discovery. This team is guiding the organization’s strategy and tactics for dealing with electronic discovery. What I learned was very impressive.  

The organization has clearly thought through the issues of dealing with large volumes of diverse digital data. They have considered how to integrate paper and how to deal with many different file types. While they do not have all the answers – after all, no one doing electronic discovery does yet – they have a vision and the toolset to back it up. I was impressed to learn that they are using products such as Autonomy and ClearForest, both of which offer sophisticated search, categorization, and meta-tagging features.

Lawyers in the private sector often assume that the government lacks technical skill and sophistication. Clearly, the DOJ’s performance in the Microsoft antitrust case should have dispelled that notion. And this particular organization impressed me as being further ahead in both its thinking and its execution than most large law firms.

While there is no substitute for good lawyering, to some extent, modern litigation and government investigations are becoming an arms race. This race is about who can get a better handle on electronic evidence. After this meeting, I’d have to say that at least some parts of the government may be winning the race.