Electronic discovery plays a vital role in the contest of litigation, audits, investigation and other formal proceedings. In fact, according to the courts, computers have become so commonplace that most court battles now involve discovery of some type of computer-stored information. Litigators often take advantage of this lack of preparation by making digital information. In some cases, litigants have been forced to search, copy and produce millions of E-mail messages at their own cost. In other cases, litigants have been required to create special computer programs to find and extract discoverable data and files believed to have been deleted. It is clear that organizations need to act now to prepare for the electronic data discovery challenge. The amount of time, money and resources expended on electronic data discovery can be amazing for those organizations that are unprepared, where the Data Triage Technologies is found to be the leading expert in the field of electronic data discovery process.
Certain forms of discoverable digital information may be more palpable to organizations, both in terms of the need to retain and manage them, and their inclusion in discovery requests. However, even the most obvious piece of evidence, such as a word processing document in electronic form, may present unique challenges. Such documents may in fact contain Meta data that reveals important information.
The scope of discoverable digital information does not end with electronic documents and other certain packages of bits. In fact, there is an entire realm of potentially discoverable evidence that many organizations may not even be aware of. Newer communications technologies and techniques may in fact offer unmanaged information to a litigant. E-mail, instant messages, wireless PDA data, and chat room or discussion database conversations are often not captured and properly managed by organizations, because they fail to apply information management and retention policies across the board. Also, such technologies may not easily lend themselves to management, as they are typically used in a casual, distributed and personalized manner. There have been many cases where E-mail or instant messages were admitted as evidence, and regulators require such information to be managed like any other record.
Increased belief on information technology and the increased targeting of electronic evidence by litigators, regulators, and investigators means that most organizations are likely to face the challenge of electronic data discovery. Therefore, an organization’s best interests can only be served by preparing for those challenges today. There are few alternatives to the development and enforcement of information management policies and practices that include an electronic data discovery plan. Further, aside from electronic data discovery, proper management of electronic information has clear benefits such as improved customer service and more efficient operations. In any case, such policies and practices should consider the following issues:
1. The organization should clearly define who is ultimately responsible for policy development, enforcement, training, notification and other duties for ensuring that electronic data discovery duties are observed.
2. In the event of a discovery request or anticipated litigation, everyone in your organization who may have control of potentially relevant information should be notified of the requirement to retain information to prevent chance of spoliation.
3. Every employee in your organizations should be aware of the duty to manage records and other information in accordance with written policies generally, and should also understand their duty in the face of audits, investigation and litigation. Employees should also be educated about adequate use and their conduct should be evaluated against these policies.
4. Organizations should ensure that they are spending their resources managing the information that has the most value. In addition, the ongoing elimination of duplicate E-mail, drafts, and so on, in accordance with a written policy can reduce the burden of electronic data discovery.
5. A key reason that electronic data discovery turns out to be burdensome for an organization is the lack of appropriate management technology and searching tools. For example, the ability to search E-mail messages by name, dates, subject lines, routing information, keywords, and other criteria can turn a long and expensive discovery process into a routine operation. Greater flexibility in indexing and retrieval tools can lead to significantly lower soft and hard costs for electronic data discovery.
6. Manage the electronic form because the courts may require information that was generated in electronic form, even if paper copies are available. Courts may look negatively upon litigants who attempt to thwart the discovery process by failing to provide evidence in its native format.
7. Remove records from active systems. Wide discovery instructions can result in an organization’s workstations, servers and networks being periodically unavailable for business operations while they are searched for relevant information. Regularly moving electronic records and other information off of active systems in and into records management, document management and archival systems can help organizations avoid this eventuality.
8. From implementing technology with information management in mind from the outset, to assisting in retrieval and production, to educating executives and attorneys and providing testimony, the IT department plays many roles in the electronic data discovery process.
Electronic data discovery has become a challenge that every organization is likely to face at some point. Further, electronic evidence has become a favorite target of litigators, regulators and investigators. Organizations need to be proactive in addressing this reality. Existing policies, practices, and technology approaches should be viewed that takes into account the millions of dollars, thousands of employee hours and other burdens that organizations have faced in the past for failing to get it right. Even organizations that are facing litigation today can benefit from improvements in technology and policies to streamline the discovery process.
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