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Proposed Federal Rules On E-Document Destruction
runner345 writes "The Federal Advisory Committee on Civil Procedure is evaluating a series of 'e-discovery' rules that will change the way litigation handles electronically stored information for the federal courts. Included in this is proposed Fed. R. Civ. P. 37 which would exempt parties from sanctions for electronic evidence destroyed in a 'routine operation of the party's electronic information system.' Microsoft and other technology heavy-hitters have strongly backed this safe harbor because it judicially validates electronic document retention policies (perhaps the most effective Orwellian misnomer for outright document destruction). If you thought it was hard to get incriminating documents from the tech industry now, think about what this rule will do to a plaintiff's chances. You can get the proposed rule here (when their site works) and read what Microsoft and Intel have to say about it here. You can also read my law school thesis on the topic (still only in draft)."
What if your regular clean up procedures begin just after you've gotten wind of a warrent or other legal issue?
Im sure there are provisions and details about these situations ( IANAL and i dont speak legalese) Can anyone with more knowledge elaborate on exactly what this all means?
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Registered .sig quotient : 1337
Broadly, my company "EvilCorp" has a document retention policy, that simply states
"Don't retain anything incriminating".
I'm glad to see, government is catching up, with trends set by industry leaders like myself !!
God Bless America.
God Bless Corporate Malfesence.
Death to document retaining, Commie Linux Users!
Also, it's worth noting.
We've always been at war, with East Asia !
[Seriously folks]
Am I the only one who thinks that government should be requiring companies to move the *other* way?
Ie, retain, *everything*... absolutely *everything*, why should email/*doc* be an acceptable domain, where, one can simply erase data under dubious circumstances ?
Because corporation (x) wants it that way ?
[Aside]
Corporations are too powerful now.
Increasingly, law is coming to reflect the interests of Corporations, instead of the interests of countries citizens.
It's not so absurd to suggest, that.. eventually, the little guy will revolt.
Think the French revolution, think the American revolution...
Eventually, when the little guy gets done taking enough crap from those on top... the little guy gives the other the boot.
In this light, Bill Gates is the King of France.
"Let them eat Patent-Cake".. etc.
The submitter makes it sound like it's horrible for the plaintiff, but would we really want to live in a world where we have to keep every single file forever? I think not.
Do we really want to live in a world where there is no such thing as electronic evidence, since anyone can just say, "oops, it got deleted in the routine operations of my business... last night." I think not. See Burst v. Microsoft.
[IANAL but have researched this issue to some extent. No statements I make should be construed as legal advice.]
Organizations should establish data retention and destruction policies and follow them consistently.
Suppose an organization has a policy that states that a) all email older than N days will be purged from the server and b) all email must remain on the server (i.e. no local storage of messages). Another party initiates legal action based on an email sent on $DATE and the discovery process begins. If the order comes through on the (N+1) day for the organization to produce its email, the organization will be in the clear because it followed its own already-established policy. However, if the order comes in on the (N-1) day and the organization purges older email early, it [the org.] will be in hot water.
However, the organization must be sure that it includes all sources of this information. Does the site backup/restore policy parallel the 90-day destruction rule? Many sites pull a set of tapes/media from the rotation once a month or so and put it aside for archival purposes. If the site policy is to destroy email but the backup tapes are available...
IIRC this was a serious mistake on the parts of Enron and Arthur Andersen: they had no such destruction policies in place and began deleting sensitive items only after they knew proceedings were about to begin.
I want to drag this out as long as possible. Bring me my protractor.
All that currently happens is that companies avoid putting anything potentially incriminating in writing. "Call me about this," the email says. So companies spend huge amounts of money ensuring "compliance" with retention laws, plus they are unable to get all the efficiency out of communications technologies that are possible because they still end up having the important conversations in person, and we still can't prove anything in court. What's next? Require companies to record and save all phone calls? The ultimate step will be when we don't allow people to have off-record conversations:
CEO: "What do you think, Phil?"
CFO: "I don't think the [FLUUUUUUUSSSSSHHHHH] shareholders will suspect a [ZIIIIP!] thing."
Retention requirements are a huge ball-and-chain for companies without fully addressing the problem they are intended to solve.
Actually, I was trying to be Insightful, not Funny.
The last thing I want is some asinine law that manadates the retention of every stupid file for ten years.
Yeah, this one is funny.
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"Reasonably Accessible" The term often means information that the party itself routienely accesses or uses or that is easily located and retrieved. By contrast, information stores only for disaster recovery is generally expensive to restore and is disorganized.
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That's pretty damn accurate in a lot of companies!
I've had enough abrasive sigs. Kittens are cute and fuzzy.
This has some negative impact on productivity in a company where the development cycle is about a year. Even bug fixing sometimes takes more than half a year as developers exchange correspondence with customers to try to figure out what their complaint is. But if they don't have their computer set to flush everything after 45 days, they are looking for -- they must manually manage retention to keep the lawyers and the customers minimally satisfied.
And I'm damn glad, it will become harder for litigious bastards to blackmail me into giving them access to my data...
In Soviet Washington the swamp drains you.
And, yet, somehow big pharma affords it. And, yet, somehow big pharma spends more on advertising than those clinical trials or the requisite data retention. Your drugs, some of which cause permanent damage to the patients taking them, are also really, *really* expensive...