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Why E-Discovery?

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I wanted to make a quick post to motivate why e-discovery is so important to IT Pros.  Isn't it reasonable to assume that this is just a problem for lawyers, or that the IT staff is going to play a minor, supporting role in all this?

 

Not anymore. There was a recent change to the Federal Rules of Civil Procedure in Dec. 2006 that expanded our definition of what's discoverable (i.e. can potentially be introduced as evidence in a civil trial) to include "electronically stored information," or ESI.  There's a brief discussion of the amendment and its general implications here:

https://www.uscourts.gov/ttb/11-06/electronically/index.html

 

The changes to the rules are designed to bring fairness to the e-discovery process, like not punishing companies that accidentally lose data in the normal course of doing business. But it does create an obligation to understand where all your potentially discoverable information is located, and how you manage it.

 

Here's an example of a preservation order the court gave to the parties in a recent trial.

 

Just stop for a moment, and ponder the breadth and depth of material this encompasses:

 

"All parties and their counsel are reminded of their duty to preserve evidence that may be relevant to this action. The duty extends to documents, data, and tangible things in the possession, custody and control of the parties to this action, and any employees, agents, contractors, carriers, bailees, or other non-parties who possess materials reasonably anticipated to be subject to discovery in this action.

 

"Documents, data, and tangible things" is to be interpreted broadly to include writings; records; files; correspondence; reports; memoranda; calendars; diaries; minutes; electronic messages; voicemail; E-mail; telephone message records or logs; computer and network activity logs; hard drives; backup data; removable computer storage media such as tapes, disks, and cards; printouts; document image files; Web pages; databases; spreadsheets; software; books; ledgers; journals; orders; invoices; bills; vouchers; checks; statements; worksheets; summaries; compilations; computations; charts; diagrams; graphic presentations; drawings; films; charts; digital or chemical process photographs; video; phonographic tape; or digital recordings or transcripts thereof; drafts; jottings; and notes. Information that serves to identify, locate, or link such material, such as file inventories, file folders, indices, and metadata, is also included in this definition.

 

That's a lot of stuff! How would you respond to a request like that?

 

And the price of mis-handling e-discovery obligations is going up. Here's a blog posting examing three cases that have received wide attention, where the court doled out punishment to the parties for failing to properly manage their e-discovery:  https://www.law.com/jsp/legaltechnology/pubArticleLT.jsp?id=1202423426906&rss=ltn

 

Your legal department will depend on you to understand where all this data is, and how it all fits together.  A good start to your e-discovery best practices is understanding how all your systems work, and being able to explain them to your legal department.

 

Another best practice is having fewer systems, more tightly managed. For instance, if you're asked to produce emails relating to a certain patent, would you rather search:

  • Exchange, or
  • Exchange, plus individual .PST files on laptops, network folder shares, Outlook Express clients on home computers, Blackberry devices, and web-based email accounts?

 

So that's what is motivating this blog.  Exchange Server 2007, Office 2007, and SharePoint 2007 have a host of features that can help you support your legal staff and your company, and we're going to explore this in more detail.