Primer: E-Discovery

Although suites of discovery and archiving tools are appearing on the market, you shouldnt necessarily expect the solution to come in one box. Retention policies have to be decided by management before they can be implemented in technology, for example, and the technical impact extends into existing messaging, content management and backup systems.

What if I cant produce the data?
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.