eDiscovery, IT and What to Do About It

Have you heard the new Lawyer joke: What do you call a lawyer who likes the new federal rules of eDiscovery? Plaintiff’s counsel. Okay, not very funny. But it makes a point.

The new federal rules are changes only lawyers who sue companies tend to like. Other lawyers, like the ones who work in your General Counsel’s office are not that happy about them. And maybe those who work in the CIO’s shop feel the same way.

On December 1, 2006, after several years of review by the legal industry, and agreement with the U.S. Supreme Court and the U.S. Congress, new Rules of Electronic Discovery became the model rules that federal courts follow. If history is any guide, state courts will also soon adopt most, if not all, of these provisions.

These rules take into consideration the major technical innovations effecting digital files and documents over the past few years. They change the game for storage and records retention, as well ongoing litigation support within your company. It’s critical that you are aware of the impact of these new rules, and understand both the positive and negative consequences of them.

Most major corporations today hold more than 3TBs of user data and messages. Trends also indicate this mass of data will grow by double digits year upon year. As that happens, the likelihood is great your company might maintain a document your records retention policy said should have been destroyed. As well, the likelihood is great your company might misplace a document within the network that some regulatory body requires you to keep.

From an eDiscovery standpoint, the critical idea is during a lawsuit, a court will have little patience if a corporation can’t find records it should or must have. If you can’t find those documents, you may well break trust with the court. Or worse, your company could be liable for money penalties, or sanctions, by the court.

In the last few years, several financial services companies have actually been cited for discovery failures and courts have imposed multi-million dollar penalties. Then, of course, there’s the underlying lawsuit that may be lost, and from that, more liability.

Rule 26 & 26(b)2

There are two key elements that will directly affect all companies. The first of these is captured in Rule 26 and its sub-chapter, 26(b)2. Rule 26 describes what is discoverable. For the purposes of this article, let’s assume everything in your corporate files that is the subject of a lawsuit, and not privileged communication, is discoverable.

This is, of course, a very broad provision, and it subjects companies to potential liability, in the first part, by what a document might contain (a “smoking gun,” for instance). And the second part is just as damaging. Since companies must turn over all relevant files, if you miss an important one, by oversight or by the difficulty of retrieving it, your company might have a problem.

Rule 26(b)2 comes to the rescue, at least for now. It deals with how hard you need to look for files. You do not need to produce electronically stored information that can be identified as too hard to access.