Answering discovery requests has always been a headache for attorneys; more recently, e-discovery has become a headache for attorneys and IT staff as well. I've written more than once this year that legal and IT should learn to speak the same language or at least to work in tandem on discovery issues.
Peter Vogel provided a nice overview of the basic issues in TechNewsWorld last week for those needing a quick refresher. Because electronically-stored information now plays some part in every lawsuit, and because "lawyers and judges don't understand IT," he says it's in IT's best interest to become familiar with the legal issues surrounding e-discovery.
Electronically-stored information comes into play most often in the area of discovery Vogel calls "requests for production of documents or things." Under the amendments to the Federal Rules of Civil Procedure adopted in 2006, lawyers need to be able to tell judges or hearing examiners where information that might be subject to discovery resides on the network, in what format, and how easily it can be accessed.
In several cases recently, companies that did not properly manage their electronically-stored information for discovery were fined at the very least. That, Vogel says, is why document-retention policies and procedures that take litigation holds into account should always be in place and enforced. He notes:
[C]ompanies need to have a records-retention policy; otherwise, how can a company explain to a judge why certain ESI was retained or deleted? Clearly, different industries and businesses are subject to state and federal regulations and laws that require retention of records...So every company needs to analyze what types of records it has and which need to be retained.