Posts Tagged ‘discovery’

Corporate records retention policies for many companies are afterthoughts with little understanding of how the company truly uses its documents/records/ESI. In my experience, many companies leave the decision of whether to keep records and for how long to their employees. This strategy is dangerous and costly when litigation is potentially possible. Allowing your employees total control over records and ESI drives the cost of eDiscovery up because you greatly multiple the number of possible storage ares you must check for responsive records. It also increases the risk of spoliation when a litigation hold is required.

Thomas Allman recently publish an article titled: State E-Discovery Rulemaking after the 2006 Federal Amendments: An Update. In it Tom points out that 23 states have adopted statewide e-discovery procedural rules which mirror or reflect the 2006 E-Discovery Amendments to the Federal Rules of Civil Procedure.

Rafael Ruffolo from Computer Word Canada wrote an interesting article titled “Basic eDiscovery Practices are being avoided”. In it Rafael stated:

“Even more troubling for Miles is that many fundamental e-discovery best practices are largely being avoided across these IT shops. About 55 per cent of survey respondents indicated that they set no guidance on dealing with important e-mails as records, and another 38 per cent said they conduct little or no enforcement of their management policies”.

Bow Tie Law’s Blog recently had an interesting piece on litigation holds titled “The Holding Pattern: Lessons Learned on Litigation Holds” where insufficient notices or notices crated in bad faith can jeopardize a case because of the possibility of spoliation of ESI.

I have run across this same problem with past customers that didn’t take the litigation hold responsibility seriously.

In the case Pinstripe, Inc. v. Manpower, Inc., 2009 WL 2252131 (N.D. Okla. July 29, 2009), the defendant ran afoul of the litigation hold requirement by relying on a manual form of placing litigation holds, e.g. send litigation hold notices out to affected custodians.

The risk in this process is that 1. you have to send the notice out to all potentially affected custodians and 2. you have to be sure they read and understand the notice.

eDiscovery practices and procedures have become a critical area of increased oversight and needed improvements for organizations of any size and in any industry.

The growing body of interpretation of the amendments to the Federal Rules of Civil Procedure, the increasing focus on email, SharePoint data and other electronic content in legal cases, and the greater focus on eDiscovery by state courts are all having an impact on how email and electronic content are preserved, managed and utilized in litigation.

Microsoft positions SharePoint as a document and information sharing platform for companies. 

SharePoint Team Services provides templates for setting up a Web site so that workgroups can share documents, calendars, announcements, postings, host blogs and wikis among other things.

SharePoint Portal Server is used to build intranet portals and share documents. The SharePoint system is a very powerful platform that will become a staple for most business entities.

The eDiscovery case referenced below is a prime example of the how email server backup tapes are still a major target in Discovery and can be extremely costly to produce.

When asked to discover two email server backup tapes, the defendants strongly opposed and indicated that searching the two tapes would cost more than $600,000.

The increased adoption of SharePoint into the corporate infrastructure has highlighted a new ESI eDiscovery target in the litigation process. The SharePoint system effectively captures and manages records and revisions. The new SharePoint release touts eDiscovery capabilities that allow the user to search for and find specific SharePoint records in response to a discovery request.

The eDiscovery phenomenon is truly worldwide. See this recent posting about new eDiscovery laws in Australia.

Here you can read about new federal rules in Australia that require all email and electronic information be produced and exchanged, preferably in their original formats.

Sounds just like the recent Federal Rules of Civil Procedure (FRCP) amendments for electronically stored information (ESI) that apply in the United States.