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Email and other electronically stored documents are now routinely presented as evidence in courts of law. To ensure litigation readiness, both legal and IT departments must address the management of electronic communication in their organization. Without the right tools in place, collecting, processing, and reviewing electronic data for e-discovery can be time-consuming, expensive, and expose a business to significant legal risks.
To effectively prepare for litigation, legal professionals must have some understanding of the technology required to store and retrieve electronic documents. Similarly, IT professionals must be familiar with the laws and regulations that impact their organizations. The most significant and widespread of those regulations are the Federal Rules of Civil Procedure (FRCP), which apply to any business that may be engaged in federal litigation. These rules clearly outline expectations for businesses to apply a consistent retention policy for email, enforce litigation holds and produce relevant or requested email evidence in a timely manner.
This whitepaper discusses the key e-discovery challenges facing legal and IT departments today, from regulations such as FRCP to the technology needed to effectively to address them. It also describes how businesses can develop a proactive strategy to deal with e-discovery requests in the event of litigation, saving time and money in the process.
The Scope of Electronic Discovery
Electronic discovery typically refers to the retrieval of electronic data to meet a legal request. However, the term is also used when data is retrieved for regulatory compliance, HR concerns, validation of client correspondence or other corporate needs.
Recently, the electronic discovery burden on IT organizations has increased both in frequency and demand. In fact, a survey performed by Osterman Research, Inc. found that during the past three years, 72% of IT organizations were required to search through backup tapes to retrieve one or more email in response to a legal or HR request. The same survey found that nearly 38% of organizations were ordered by a court or regulatory body to produce employee email1.
These statistics are not surprising when you consider the way email is used for day-to-day busi-ness communication. After all, sexist, racist and other inappropriate content—which would be deemed unacceptable in other corporate settings—can often be found in employee inboxes. As a result, email evidence routinely comes to play in HR-related cases and has been the “smoking gun” in numerous cases of illegal corporate activity.
As the number of e-discovery requests continues to grow, virtually every organization requires search and discovery capabilities, even if they are not actively involved in litigation.
The Impact of e-Discovery
There is ample evidence to suggest that if a corporate IT department has not already been involved in e-discovery, they soon will be. In fact, 83 percent of U.S. corporations are engaged in some type of litigation, according to an independent annual research survey by the law firm Fulbright & Jaworski2. Since most of those cases involve email, the likelihood of facing an e-discovery request is very high.
Without the right tools and processes in place to effectively search and retrieve requested information, a number of serious consequences can result. These can range from fines and ad-verse inference judgments based on spoliation (see definition at right), to a damaged corporate reputation or even criminal charges. And this does not take into account the significant costs a business can incur trying to retrieve and search through data.
Meeting Requirements of the Federal Rules of Civil Procedure
The Federal Rules of Civil Procedure (FRCP) were amended in December 2006 to help clarify how electronic information should be handled during federal litigation. Since then, there have been numerous case law examples to support a proactive approach to storing and accessing email for e-discovery. In fact, in the year following the amendments, 105 legal opinions involving e-discovery were reported3, making it clear that the courts are taking this issue very seriously.
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