Student-run law publication Richmond Journal of Law and Technology (JOLT) is on a mission to rain lightning-bright clarity on the topic of Electronic Discovery (eDiscovery). As of December 1, 2006, changes to existing eDiscovery rules require companies to have clear policies and keep track of employee e-mail, instant messages and other electronic documents or communications delivered through or stored via the Internet.
The requirement of compliance is stringent, with non-compliant companies facing charges of adverse inference (shiver), which means that amid a litigation, a jury may assume the data that was not presented contained incriminating information.
The problem is the fluid nature of electronic information and the relative naivety of many of those who must manage the email compliance issue. This is where JOLT steps in.
Once a year, JOLT publishes an issue dedicated solely to emerging matters in eDiscovery. The most current volume covers the December rule changes and contains the following six resources:
* Managing Preservation Obligations After The 2006 Federal E-Discovery Amendments, by Thomas Y. Allman
* Information Inflation: Can The Legal System Adapt?, by George L. Paul and Jason R. Baron
* In Pursuit Of FRCP 1: Creative Approaches To Cutting And Shifting The Costs Of Discovery Of Electronic Information, by Mia Mazza, Emmalena K. Quesada, and Ashley L. Sternberg
* The Two-Tier Discovery Provision Of Rule 26(B)(2)(B) - A Reasonable Measure For Controlling Electronic Discovery?, by Theodore C. Hirt
* Backup Tapes, You Can’t Live With Them and You Can’t Toss Them: Strategies for Dealing with the Litigation Burdens Associated with Backup Tapes Under the Amended Federal Rules of Civil Procedure, by Grant J. Esposito and Thomas M. Mueller
At a glance, Creative Approaches To Cutting And Shifting The Costs Of Discovery Of Electronic Information makes for a particularly interesting read because of the way it addresses the problematic nature of electronically-stored information: it moves quickly, is easily changed, may be difficult to trace, and occasionally proves impossible to delete entirely.
It also presents solutions to cutting compliance costs, thereby shifting the burden to yield the benefits of organizing digital information. One positive characteristic of getting your online act together is that, "[when] properly employed, 'electronic discovery allows a party to organize, identify, index, and even authenticate documents in a fraction of the time and at a fraction of the cost of paper discovery while virtually eliminating costs of copying and transport.'"
The article notes some enterprises have already taken advantage of this by leveraging the searchability of properly labeled and archived business records. A good IT dept. knows that "leveraging searchability" doesn't quite solve all the problems eDiscovery compliance presents, but it's a decent starting point and records management vendors like Open Text, IBM/FileNet, EMC/Documentum, MessageGate and Oracle/Stellent have long been gnawing at the bit.
Another topic of interest is Backup Tapes, You Can’t Live With Them and You Can’t Toss Them. Any number of IT employees who happen to reuse backup storage tapes, or record over old media, can be accused of "virtual shredding" if a lawsuit is filed.
According to the sobering article, the federal government now "requires the disclosing party to identify all its sources of data. While the new rules will often spare companies from having to produce inaccessible sources of data [...] companies must [...] demonstrate why those data sources would be unreasonable to search because of undue burden or cost."
Faced with this back-up issue, JOLT authors Esposito and Mueller cite a case study in which "the only definite information that would result from restoration would be information that was fourteen days older than that contained on the active system. In the court’s estimation, the fact that there might be 'a few deleted e-mail' in the fourteen days worth of e-mail was not enough to justify the expense necessary to obtain it."
That ruling was from Concord Boat Corp. v. Brunswick Corp. (It might help to write it down.)
The Richmond Journal of Law and Technology is published by the University of Richmond School of Law. Reaching back as far as 1995, JOLT was the first exclusively online law journal. Its focus is, appropriately, the intersection of law and technology.
The publication is available at no cost on the JOLT website. And for those with more time on their hands, one may read all JOLT eDiscovery issues here.