The Double-Edged Sword of E-Discovery

With so much information communicated digitally – via email, text and instant messages – you’d think the world of electronic discovery (whereby electronic data is sought, located, secured and searched with the intent of using it as evidence in a civil or criminal legal case) would be a whole lot easier these days.

The truth is, according to a recent article on Law.com, that it is only easier IF you know what you are doing and have the right tools to cull through mountains of ESI (electronically stored information). In the article, David Mankuta points out a few key discovery insights from a litigator’s perspective:

• Think before you hit “send.” While there may be a temporary sense of fulfillment telling off a coworker or manager, those emails can come back to haunt you.
• Communicate how attorney-client privilege works. Many business managers are oblivious to the fact that a privileged email communication between attorney and client loses its “privilege” if it is sent to a third-party. Conversely, not every email communication between an attorney and client is actually privileged if it is done with the intent of masking wrong doing.
• Engage a forensic computer consultant early. These consultants are experts and know how to tailor discovery requests to opposing counsel to ensure you get the right search results back, and not everything under the sun.
• Capture all sources of ESI. Remember, electronic communications can reside anywhere – PCs, home PCs, backup servers, smart phones, thumbdrives, etc.
• Obligation to Preserve Notice. Think Enron here and make sure to serve notice to opposing counsel that all relevant electronic data needs to be preserved and can help bolster your case (and secure punitive damages) if this data is “misplaced.”

Naturally, I’m compelled to add to this list with three more insights based on our experience with companies facing litigation:

1. Archive Everything. Start archiving now, so you can quickly search and find the smoking gun (allowing you to settle out of court and avoid expensive on-going litigation) or better still, find your “needle in the haystack” – that email (or email thread) that exonerates your organization from misconduct.
2. Have clear retention policies. The only thing worse than having no retention policy is actually having one but not enforcing it. If your policy is to delete all messages after one year, make sure you are in fact deleting ALL messages after one year. IMPORTANT NOTE: You do not necessarily need to have a completely articulated retention policy before you start archiving.
3. Ability to apply legal holds. If you are ever faced with litigation, you will need a way to communicate what needs to be preserved, who needs to preserve it and a means of actually preserving it. With an archiving solution in place, you just need to worry about communicating the legal hold, since the messages have already been stored and indexed in your archive.

For a great video on the growth and challenges of ESI, I encourage you to check out the embedded (6-minute) YouTube video titled “e-Discovery: Did You Know?” The video presents some amazing facts behind the information explosion and rapid advances in technology when it comes to e-discovery.