In today's litigious world, it is rare that any company can escape a lawsuit in its business life. It is becoming the CIO's job to make sure, when the time comes, that IT is ready for the onslaught of directives to turn over all electronic documents in a legal case. And that's where the headaches start for any IT department that does not have a good e-mail retention and retrieval system.
A year ago, the US government made electronic documents an official part of the discovery process during a lawsuit. The rules for what is called "e-discovery" that took effect 1 December 2006, make production of electronic documents as important as turning over hard copies of material in any legal case. Companies typically have 30 days to answer any e-discovery request and face thousands of dollars in fines if they fail to respond promptly.
In this new world that marries the legal system with technology, IT departments must work out a plan with the legal department to save necessary e-mails and make them easily retrievable. Yet there are few rules for setting up an electronic records management system, training employees to catalogue their e-mail and creating a standard procedure to turn over electronic documents quickly. And so, many CIOs are still scrambling to organize their corporate e-mail and keep track of these records in a comprehensive way.
The key to compliance with e-discovery rules, say legal experts and IT leaders who have already tackled the problem, is to establish enterprisewide document management and retention practices for e-mail and other types of digital documents, then deploy the appropriate software to support them. Here are ways to get ready for the inevitable:
1. Get in sync with legal and business leaders.
"The problem with e-discovery is the first time it hits your radar screen is when the general counsel calls and tells you what the court wants," says Paul Zazzera, a consultant and former CIO at Time. "A CIO and the legal department should be fused at the hip," Zazzera says, so as to develop a framework for everyone to follow.
Include business leaders in the discussion. "Too many CIOs think of litigation as something that belongs to the legal department," says Leslie Wharton, who heads the e-discovery team at the Arnold and Porter law firm. "Litigation is something that belongs to the company, and whether the company is a plaintiff or defendant, the company as a whole must be able to meet document preservation and production obligations."
2. Get rid of unneeded documents.
Many companies keep data from legacy systems that are obsolete, so there's no business reason--and unlikely any legal reason--to have them around, observes Julie Brickell, associate general counsel at Altria Corporate Services, which handles tobacco litigation for affiliate Philip Morris USA.
Defining what you should preserve is murky, however, and depends on what kind of business you're in. Most important, says Zazzera, is to have a consistent policy for what is permissible to delete--and what is not. Have the same rules for e-mail as for other electronic documents.
Most companies will say that all electronic and paper documents generated by company employees on company property can become part of the e-discovery record. But there are grey areas. For example, if a person sends a personal e-mail using a company computer, should that be turned over in e-discovery? And if a person sends e-mail from his own computer about company business, can it be protected?
3. Know where the e-mails are.
Have a map showing the location of every e-mail you keep, and how to retrieve it. Make sure the IT department and business units know where to find the material.
By storing all e-mail in just a few places, it's easier to comply quickly with discovery orders. The law firm also plans to apply technology to help it catalog paper files. In the next year, Conlon plans to deploy radio frequency identification (RFID) to find paper documents, which could make it much easier to search for hard copies of documents.
In addition, make e-discovery compliance part of your due diligence if you are thinking about buying a company. Look at the e-mail storage plan of any potential acquisition to make sure you will be able to produce all electronic data without a glitch if there is a lawsuit down the line.
4. Train your staff and end users.
Make sure everyone in the company knows what materials to keep and what to discard. "It is reasonable for a corporation to rely on employees to save documents that might be in litigation," says Howrey's Rosenthal.
If you have a personal e-mail policy in your office, make sure employees know what kind of messages should never be sent from an office computer. All e-mail, both personal and corporate, creates a potential litigation risk, says Patrick Oot, Verizon's director of electronic discovery. "Employees should realize the lack of privacy in e-mail. If executives imagine their e-mails blown up on a highway billboard, that's exactly how it looks at trial," Oot says. He offers a general rule: "Never put anything in an e-mail you wouldn't want your mother to read."
5. Invest in the right document search and retrieval technology for your company.
There are e-discovery tools designed to meet the needs of any company, from startups to large multinationals. You also have a choice whether to outsource instead of deploying the technology yourself. But a basic system includes search and retrieval software as well as archiving capabilities, says Zazzera.
The cost of these tools varies depending on size and sophistication of the system. A small firm might spend its money more wisely implementing better document management processes instead of technology. Because small companies don't face many lawsuits, e-discovery experts say it's more important for them to ensure they save records in a consistent and reliable way.
The bottom line, according to e-discovery experts, is that waiting until the last minute to deploy technology can be more costly than planning ahead. Zazzera's final piece of advice: "Collect stuff for a long period of time efficiently so it doesn't cost you a fortune. Discovery is expensive."
Judi Hasson is a freelance technology writer.
Join the CIO New Zealand group on LinkedIn. The group is open to CIOs, IT Directors, COOs, CTOs and senior IT managers.