Archive for the ‘eDiscovery’ Category

It’s hard to believe that the amendments to the Federal Rules of Civil Procedure (FRCP) took effect over 2 years ago. It’s hard to believe because so many organizations have still done very little to ensure they can meet the requirements set forth by these rules. But, I truly believe that 2009 will be the “end of the ignorance.” Why? Because in today’s economic climate, every dollar counts.

An interesting news story appeared in the Denver Post on December 26, 2008. It was a story about the expected rise in wrongful termination lawsuits as the economy worsens.

From the Denver Post Article by Carol J. Williams:”But labor and employment lawyers warn that a tidal wave of wrongful-termination lawsuits is expected in the coming months as the jobless burn through their savings, run up debt and find few work prospects in the worst economic downturn in decades.

Shortly after the new amendments to the FRCP were published, I was told by many GCs that finally backup tapes had been protected from the dreaded discovery request. When asked why they held this opinion they responded;”Rule 26(b)(2)(B) takes backup tapes off the table because they are cost and not easily restored and searched”.

I would suggest a closer reading of the committee notes. These notes are as important as the actual amendment.

I came across an article here recently where a Pittsburg lawyer comments that “E-discovery is one of the hottest areas in law. This isn’t something that is yet taught in law schools. Many firms are just now starting separate departments for e-discovery.”

So what is discoverable and therefore subject to a litigation hold in federal civil litigation? The short answer is anything is potentially discoverable.

What does this mean to potential targets of civil litigation for discovery? It means you must take into consideration all sources of potentially responsive data within your corporate infrastructure.

I am constantly asked what retention periods the federal rules of civil procedure (FRCP) stipulate for email. In the first place, the FRCP are, in effect, the manual on civil court proceedings. BY this I mean it directs how the court will be run, how defense and plaintiff’s counsel will interact, requirements on procedures and timing and how discovery will be managed etc.

Section 26(f) of the new FRCP amendments points out the requirement of parties to the legal action must get together to discuss questions such as: what information must be produced, how that information will be collected, whats considered inaccessible and in what format the information is to be produced. This early meeting is called the “Meet and Confer”

Litigation is a major problem these days for businesseswith a significant portion of the cost being the cost of finding and reviewing electronically stored information (ESI) for both Early Case Assessment (ECA) as well as eDiscovery Request response.

An Early Case Assessment capability provides you with 4 key benefits:

1. It provides an early indication of the merits of the case

I attended a couple of seminars last week - one in Chicago and one in Toronto.  Despite very different audiences (more of a legal flavor in Chicago and more of an IT / messaging administrator flavor in Toronto), the sentiments about eDiscovery were the same…it’s painful.  In fact, an audience member in Toronto said that painful is not the right word to describe eDiscovery.  A better word is “nightmare.”

Many companies I speak with mention the fact that they have some small percentage of their email traffic in an encrypted format. This can be either because of company or regulatory requirement or even more, because employees don’t want the content read by the company.

Encrypted email can represent a major risk in a corporate civil litigation if the company doesn’t have the encryption key.