E-Discovery: It is All About Retrieval
Do you know where your documents are? Roger Matus, technology commentator and CEO of InBoxer, discusses archiving and e-discovery. He also authors the blog Death by Email. Read this summary of a recent interview with Lora Bentley at IT Business Edge.
Brokerage firm Morgan Stanley recently paid $12.5 million to settle charges that it failed to disclose e-mail in arbitration and that it falsely claimed the messages were destroyed in the September 11 attacks. The case illustrates the importance of litigation readiness. And as this Metropolitan Counsel piece points out, the challenges corporate counsel face in dealing with the new e-discovery requirements of the Federal Rules of Civil Procedure are many - not the least of which is failure to understand the new rules. Metropolitan Counsel reports:
Only 10 percent of corporate counsels say they understand changes to the FRCP very well. Thirty-three percent frankly state that they do not understand the changes very well.
In a recent IT Business Edge interview, tech blogger Roger Matus agreed, noting that most people with whom he speaks have failed to grasp what the e-discovery rules mean for their business:
Most people are confused. There is no requirement to archive anything in the FRCP. As a matter of fact, the words “archiving” and “retention” do not appear in the FRCP. Instead, the requirement is to produce anything you have and to make sure that it remains intact. Specifically, the FRCP says anything “in the possession, custody, or control of the party.” (Rule 26(a)(1)) must be produced. The party includes employees, Boards of Directors, administrators, some consultants, etc.
The confusion is fueling what has become a $2 billion business, according to law.com. And the biggest way to "defuse the fear," the story says, is to prepare ahead of time. Draft electronic document discovery policies and protocols. Map out your IT infrastructure and install electronic document collection systems.
Again, Matus agrees:
When I talk to folks, I get a lot of questions like, “Isn’t backup enough? I’m storing things already … If I need it I can find it because it’s there somewhere.” The problem is, what you’re really being measured on is how quickly you can get the data out. So things that already de-duplicate, things that already show you on the screen what you’re going to get on the report, the ease with which you can mark something as privileged, the ease with which you are able to download documents and hand them over to somebody else … these are the things companies should be looking for.
So what’s important in the collection and archiving systems you put in place? Matus hones in on three things:
But, Matus says, the full impact of the rules probably won’t be felt until companies are educated about the rules and they begin to see the fines and penalties imposed for failure to properly produce electronic information. As we mentioned in the beginning, the Morgan Stanley case is a prime example.
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ABOUT THE AUTHOR
Lora is an attorney and journalist who covers regulatory and legislative issues for IT Business Edge's Managing Compliance Standards weekly report.