What is e-discovery and why should you care?What is it?
E-discovery refers to finding and producing documents stored in electronic form in response to litigation or regulatory requirements. Civil litigants, regulators and criminal prosecutors now commonly ask for copies of selected e-mail communications or make broad requests for all electronic records. That trend will only intensify after Dec. 1, when changes set to take effect in the Federal Rules of Civil Procedure make e-discovery a standard part of federal proceedings. Why should I care?
Responding can be a burden, particularly if corporate archives are poorly organized and difficult to search. Costs include the information systems expense of locating backup tapes, restoring data and extracting relevant information, as well as fees paid to lawyers for reading through thousands of pages of poorly sorted and categorized documents.
"Managing electronic discovery is probably a number-one initiative at all legal departments," says Patrick Oot, who leads an e-discovery team of three attorneys and an information-technology liaison at Verizon. "Depending on the volume of litigation an organization has, this can be one of largest line items in your [legal] budget."
There are several:
Make sure you can point to a good reason, such as a retention policy under which data was routinely deleted. But beware of giving a judge the opportunity to think the real reason is that youre not trying hard enough. In a fraud lawsuit brought by Coleman Holdings against Morgan Stanley, a Florida judge lashed out at Morgan Stanley for fumbling the recovery of archived e-mail--and told the jury it could assume the firm was deliberately hiding evidence of guilt. In May 2005, the jury awarded $1.4 billion in damages; Morgan Stanley is appealing. Renew Data, a compliance and e-discovery services firm that the court hired to independently examine the contents of the Morgan Stanley backup tapes, found e-mails Morgan Stanley had missed on one set of archives and more e-mails on another set of tapes that wasnt supposed to contain any e-mails at all, according to Renew Data CEO Robert Gomes. How much of this is about e-mail?
"E-mail, right now, is the great albatross for most organizations," says John Bace, a Gartner analyst specializing in the legal and regulatory issues of information technology. Though intended for relatively informal communications, rather than official corporate record-keeping, "E-mail has developed into something more like the central nervous system of a company, something it was never intended to be," Bace explains. As a result, litigants have latched onto e-mail as a treasure trove of information about the thoughts and intentions of company employees. "I cant think of a regulatory or litigation [action] that doesnt ask for e-mail," says UBS general counsel Toni Tomarazzo. Making matters worse, e-mail is unstructured data, making the search for relevant information more like a Web search than a more orderly database lookup. Other forms of unstructured or semi-structured data, such as the contents of wikis and other collaboration tools, could also be targeted for discovery. Although by policy UBS doesnt endorse individual vendors, Tomarazzo says she recommends finding a service provider that offers a turnkey suite of technologies to preserve e-mail; archive it on write-once, read-many backup media; extract messages on request; and provide review and classification tools for lawyers.