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Q: Why are email and instant messages (IM) increasingly being used as evidence in court cases?
A: As people increasingly communicate by email and IM, the most relevant evidence will be found in the main channels of communication - email and IM. We also see that fewer "documents" are being printed, so more evidence in general is in electronic form. There are something like 64 billion email messages sent in a year. The sheer numbers dictate a change over to electronic evidence. In addition, the relative informality of email and IM may lead to communication that is more direct and less guarded.
Q: What are the biggest challenges that companies face in an e-discovery request?
A: Cost, cost and cost.The costs of complying with an e-discovery request can be enormous. Even simply preserving or "imaging" hard drives can be surprising expensive. Implementing and enforcing hold orders can take a lot of time and require additional staffing or changing priorities of employees. In many instances, too, the electronic records simply are not managed in a way that it will be easy to comply with a request, especially broad requests.
Q: How can an organization plan an effective discovery response strategy?
A: Advanced planning is far better than reactive planning. The sooner you can get the legal department, the IT department and business executives together in the same room and get them to continue talking on a regular basis, the better off you will be. The first step in any planning is to understand what you have and what electronic information you create and keep. I hate to use the word "audit," but you have to know where you are to figure out where you are going. The more education you can get on the likely issues, the better you can plan, too.
Q: Can you give an example of a legal case where there was a failure of compliance?
A: We are starting to see these kinds of examples on a regular basis. At times, there have been very large costs and sanctions associated with these cases. I consistently hear the recent Morgan Stanley case being cited as a cautionary tale.
Q: Could you provide some useful tips on successful management of the e-discovery process?
A: 1. It's a team game. Bring all of the constituencies to the table.
2. Consider e-discovery as part of the larger records management and compliance process, and be wary of making decision that only consider the litigation consequences of what you do.
3. Education and training is key. The IT people must understand the legal issues and processes. The lawyers must have solid understanding of IT processes and procedures.
4. Investigate the possibility of creating a litigation support manager position. This may be the most important step you can take.
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