Federal Judge Warns of E-Discovery Pitfalls

Another issue is how long businesses must preserve data. It's still reasonable, under the law, for a business to dispose of data. Facciola said a concern was raised early that businesses not be subject to sanction for disposing of data in good faith. "The rule ... says that sanctions may not be imposed under these rules for the good-faith destruction of information when it was pursuant to ordinary business process," he said.

However, "once a litigation hold is imposed by a court order or by agreement, those systems have to be shut off," Facciola said. Normally, the attorneys will agree on what evidence needs to be "preserved," who will have to produce copies of it and in what form, he said. A business could have a process, for example, which disposes of deleted e-mail more than two weeks old. Once its attorneys instruct it to shut that process off, it must do so. Nothing will get someone into deep trouble with a judge faster than acting in bad faith, Facciola said.

This is why some argue that eventually everyone will just archive everything. It's just too hard to make a reliable policy and to get all employees and partners to conform to it; it's easier to save everything, and storage is cheap anyway. The sad implications for privacy are to be left for another day.

In what form will people be required to produce evidence? New rules in the Federal Rules of Civil Procedure call for native format, which, according to Facciola, "means the format in which the electronically stored information was originally created, with the accompanying metadata." Metadata has been a sore point in some litigation. "A PDF or TIFF image of a document may not be as appropriate as the original Word document, including the Author information that it stores," Facciola said.

And while these issues have primarily to do with civil cases, since that's where the (now virtual) reams of paper are, they are no less relevant to criminal cases, he said. This last month was full of criminal cases for Facciola, and it was his "tipping point," he said. "I didn't issue a single order for a tangible piece of evidence. It was all e-mails, Internet portal addresses, cell phones ... The sophistication of law enforcement in these grounds has grown by leaps and bounds within the last couple of years."

And the cost associated with e-discovery in some criminal cases could be serious, he noted. So many defendants have representation paid for by the government that a significant e-discovery for one of them could blow the budget.

Security Center Editor Larry Seltzer has worked in and written about the computer industry since 1983.