E-Discovery: When Legal Trouble Hits, the Delete Button Will Not Protect You

Many businesses hardly give a second thought to old e-mails, digital documents, and instant messages. But, if you don't know how long employees are keeping these documents, you may very well have some legal time bombs sitting on your company's network or employee hard drives.

Recent headlines serve as a chilling reminder that the e-discovery process can unearth damaging data that sinks careers and company reputations.

E-Discovery: IT Execs Overconfident and Underprepared

Almost 98% of IT executives rate their ability to respond to litigation as above average or very well prepared, according to a new survey from IDC. But according to analysts, they are vastly overrating themselves.

Adam Bendell, senior managing director at FTI Consulting, which commissioned the study, says there is a big disconnect between perceived and actual litigation readiness.

IT executives' perceived ability to respond to e-discovery requests "doesn't jive with the reality that other people involved in the survey or delivering [e-discovery] services see," he says.

Review E-Discovery to Reduce Spoliation Risks

Have you ever been lucky enough to experience the feeling that comes over you when you learn that your client did not retain e-mails that are pertinent to litigation, whether it be that the e-mails were simply deleted or that your client's computer crashed three years ago and sent potentially relevant e-mails straight into Dante's eighth circle of hell? Quite an unsettling feeling. Despite counsel's best efforts, preservation of electronic information seems to be a constant sore spot in complex litigation.

In a post-Zubulake and Morgan Stanley world, where the amendments to the Federal Rules of Civil Procedure went into effect well over a year ago, the struggle with how to best manage electronic data discovery continues. See Zubulake v. UBS Warburg, 229 F.R.D 422 (S.D.N.Y. 2004); see Coleman Holdings v. Morgan Stanley, 2005 WL 679071 (Fla.Cir.Ct. March 1, 2005).

Web 2.0 Collides With E-Discovery

You have received a document request from opposing counsel. Among the various items of calendar entries and e-mails requested is a request for "Any and all social networking or business networking information related to the key player(s)."

This raises questions of what is in scope, where is it, how much is enough, and who is responsible for producing it? Welcome to the collision between Web 2.0 and electronic data discovery.

Why Your Business May Be At Risk . . .

Nearly all of the information now being created and stored by businesses is being created and stored electronically. Paper files and multiple versions of hard copy are becoming a thing of the past. It is no wonder that federal and state courts have amended procedural rules to recognize this trend, and included new obligations on lawyers and businesses (no matter how big or small) regarding electronically stored information ("ESI").

The impact of these new court rules goes far beyond those lawyers and businesses actively involved in a lawsuit; yet businesses continue to remain unprepared to manage these new ESI obligations. In fact, a recent survey of 200 United States commercial businesses conducted by Canvasse Opinion found that almost half of the companies do not have a strategy or policy in place on how to deal with ESI in litigation or in internal investigations.

Unified Communications Bring E-discovery Headache

To its advocates, unified communications is considered the answer to a number of business communication issues. The integration of all communications, including voice and data, over the Internet is gaining wider adoption as organizations pursue it for cost savings, businesses process transformation, enhanced collaboration, and even “green” benefits.

In business, IP telephony has reached about 25 percent of the global market, and many organizations are considering wider deployment, according to Technology Futures, Inc. However, an e-discovery concern that still is somewhat under the radar could slow adoption as companies learn that the move away from traditional phone service includes the conversion of voice mails into e-mail in the form of wave (audio) files.