E-Discovery: What’s in That E-Mail?

July 19, 2007 at 3:04 pm | Posted in communication, Content Management, Legal | Leave a comment

There was a seminar this morning on E-Discovery that focused on the intersection between the law and IT with regards to information retention and discovery. There were presentations by Joseph L. Fogel and Hillard M. Sterling (attorneys at Freeborn & Peters LLP), Karen Hobert (Burton Group analyst for Collaboration and Content Management), and Trent Henry (Burton Group analyst for Security and Risk Management Strategies). Then I moderated a panel with the four speakers. The audience was about one third lawyers and two thirds IT people. E-Discovery is not my normal area of research, but I found the issues and discussion fascinating and thought it could be useful to others if I posted my notes here.

  • I had an interesting discussion with Joe before the seminar about how the courts reconcile the leading edge nature of e-discovery and the conservative nature of many large corporations when it comes to IT. It’s all to easy for someone who hasn’t been a part of IT migration and upgrade plans to see a brochure for some great search, categorization, or discovery tool, take that as a proof point that a high level of information is reasonably accessible, and then assume any corporation that isn’t using such technology is just being obstinate. I’m not a lawyer, but Joe pointed to a Rule 26(b)2)(B) that says “a party need not provide discovery of electronically stored information from sources that the party identifies as not reasonably accessible because of undue burden or cost. …”. This market is obviously at the leading edge of its growth curve judging by the number of disconnected technology markets, number and size of vendors, and confusion among IT shops in what to do. So how quickly are organizations expected to be able to adopt the newest technology and best practices? Joe’s answer is that, like much else in law, it depends on the judge you get. There is a wide variance in the level of understanding of technical matters that judges have and that can strongly influence whether he/she deems an organization to be lax in its duties for disclosure.
  • It was made clear that policies for retention or auto-deletion of information have allow for modification due to potential pending litigation. Rule 37(f) (“safe harbor”) was cited. To me this means the policies have to be flexible and there needs to be a path of communication between legal and IT so that they know who to tell in IT that auto-deletion must stop and that it can be stopped quickly once that order is sent.
  • Hillard mentioned that for most of the large judgments that are handed down for inability to disclose requested information in a reasonable amount of time, there is usually a historical pattern of non-compliance present. An angry judge then sees a pattern of obstruction and decides to make a statement.
  • There still seems to be a legal limbo between countries that affects global US-based companies. US discovery laws may order the disclosure of information from, say, the London office of a company. But stricter British privacy laws may make compliance with that order illegal in England. During the panel the attorneys were asked how that is resolved and it seems the answer is that issue is still up for debate.

There is a lot more depth that was discussed, but needless to say one morning wasn’t enough for me to feel my opinions would be worth much. This was just my first taste of a topic I hadn’t been exposed to before. Just as we had three groups in the room – legal, IT security, and IT communication/collaboration/content – many organizations need to build bridges between these groups before e-discovery issues come to a head.


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