April 11, 2008
This artilce was orignially published by TechLINKS.
Every CIO in America knows that the federal courts recently imposed new electronic discovery burdens on virtually every organization in the country. In more than a few businesses, living with these new rules has generated friction between the IT department and the general counsel’s office. At least half the blame for that friction can be placed on the lawyers, of course, but both sides sometimes have a hard time speaking intelligibly to each other. As an attorney who has led clients through the maze of e-discovery for 15 years, I believe the CIO can help avoid misunderstandings and wasted time by keeping the following strategies in mind:
E-discovery best practices are ESI management best practices.
No one can blame the IT organization for viewing the legal department’s new demands as an intrusion on its daily business, particularly if the only previous communication between the company’s lawyers and the IT department had been through the Help Desk. But the courts’ expectations for discovery of electronically stored information can be boiled down to these simple guidelines:
- The company needs a document retention schedule tailored to its particular business and regulatory requirements.
- The company can delete ESI, but this deletion must be in compliance with its document retention schedule, not in response to a legal claim or crisis.
- The company must be able to recognize when litigation is likely to arise.
Once the company knows litigation is likely to arise, it must stop all destruction of relevant ESI.
Given the courts’ expectations about discovery of ESI, e-discovery preparedness is largely a matter of maintaining sound data management practices. Rather than looking at e-discovery as a new burden, IT managers should view it as a normal, ongoing part of information management. If ESI is being managed properly, the process of preserving and collecting relevant data should complement existing procedures, not bring them to a halt.
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