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Businesses Generally Ignoring E-Discovery Rules
eweekhickins writes "A full year after the institution of new federal e-discovery court rules, only a minority of companies are paying attention. Keeping track of every IM, email, and document for a court order that may never come must seem like a tall order. Researcher Michael Osterman said that only 47 percent of companies have some kind of e-mail retention policy in place. 'I don't think it's difficult to understand the rules,' Osterman told eWEEK. 'I just think that it sometimes takes headline shock to make people move on some things.'"
The Federal Rules of Civil Procedure are being grossly mischaracterized here. The main purpose of the changes is to make it so companies can't intentionally obfuscate their data storage in order either 1) increase the timeline for digital discovery; or 2) increase the costs (especially to the non-business plaintiff) for digital discovery.
The FRCP are not a set of regulations to govern businesses, it just means that parties with digital information will bear the burden to produce it in the event of a lawsuit. Depending on the frequency with which your company is sued, it may or may not be a good idea to make it faster to access your backups.
You aren't under an obligation to save all electronic corresponce unless you are in a heavily regulated industry with special rules requiring that. However, anyone who deletes or destroys documents once a court order has been issued is in pretty big trouble if they get caught. This has been true long before the advent of email.
IMPORTANT NOTE: I am not a lawyer, this is not legal advice, there is no formation of attorney client privilege, this does not serve as an offer to represent you, your family, or anyone you have ever met, consult the advice of a licensed attorney in your jurisdiction before taking any action, the forgoing is for informational and educational purposes only, and any and all warranties inherent in this post whether express or implied are hereby disclaimed.
"If you think you have things under control, you're not going fast enough." --Mario Andretti
You inconsiderate clod, it creates nothing but opportunity for lawyers to charge endless fees for e-discovery. Imagine the new volumes of information available for them to charge $500 an hour to sift through! And if they can charge $1.50 per page to make copies of documents, imagine how much they can markup deleted email recovery services! And the damage awards they can demand from corporation-hating juries for failure to retain data that may or may not have any relevance to the case at hand.
The opportunities are endless!
Give a man a fish and you have fed him for today. Teach a man to fish, and he'll say "WHERE'S MY FISH, YOU IDIOT?"
I can tell you the following:
1. It is a big business.
2. It is not "pointless".
3. The reason the laws were passed is that people were intentionally deleting documents or worse LYING and claiming they had deleted it when back ups were clearly present. They lied because of the expense it would take to recover the back-ups. Honestly, was it that hard to have the lawyers talk directly to the tech people, instead of too middleman that cared more about money than their legal responsibilities?
4. The law at heart simply states that if you have documents then deleting it BECAUSE of a legal action is illegal.
5. The law clearly allows you to routinely delete documents, say 1/year, or even every month.
6. All it really takes to satisfy the law is a commitment to a reasonable data-retention policy. The only businesses that don't or can't comply are
A. those that have been giving their IT department the short-shift, not providing a reasonable amount of cash for data and back-ups.
B. Those that don't realize that after you are SUED or CHARGED with a crime means you have to spend money on the law-suit. That includes the responsibility of saving and organzing the data you collected.
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This ruling is about what is and isn't considered destruction of evidence in a court case. The only business which may be required to retain more data that they already would are those who are being investigated for a crime. There are two parts.
The first deals with data deleted prior to the start of an investigation. Basically if you have an data retention plan that states how long you keep documents for, and you follow that plan, then you cannot be charged with destruction of evidence. On the other hand if a bunch of documents relevant to an investigation just happen to be deleted in a manner that deviates from your normal behavior, then you can be.
It doesn't matter what the plan is - it could be that you delete emails from the server immediately after they are download, or you can back them up for eternity, or anything in between - it is entirely up to you. For the sake of CYA, it is a good idea to have this policy documented, and to make sure it is followed closely, but you are not required by law to do so.
The second part gives judges the ability to require companies to retain data relevant to an investigation that would otherwise be deleted as part of their normal data retention policy. This requires a court order, and is no different from dead-tree requirements. Again, you are not required by law to have a plan in place to do this, however, it is good idea to think about it so that you aren't scrambling to figure out how to deal with it if you ever are investigated.