One View on eDiscovery Readiness

The August 2007 edition of the terrific e-newsletter Law Technology Today runs a story entitled “eDiscovery Sanctions – Staying out of Harms Way” which provides some practical tips on helping a client index and organize their electronic data.

I particularly enjoy the first couple of paragraphs that discuss the 1970 amendments to the Federal Rules of Civil compilations

In 1970, the Federal Rules of Civil Procedure incorporated the concept of “data compilations from which information can be obtained” into its text. From that moment on, digital documents on computers were available for discovery.

In reading the Advisory Committee Notes to the 1970 FRCP Amendments for Rule 34(a) (about midway down the page), it’s obvious that they wrestled with several of the same issues that the Advisory Committee struggled with on the 2006 Amendments.

The inclusive description of “documents” is revised to accord with changing technology. It makes clear that Rule 34 applies to electronic data compilations from which information can be obtained only with the use of detection devices … respondent may be required to use his devices to translate the data into usable form. In many instances, this means that respondent will have to supply a print-out of computer data. The burden thus placed on respondent will vary from case to case, and the courts have ample power under Rule 26(c) to protect respondent against undue burden or expense (copied from Cornell’s Legal Information Institute)

I also like how the article distinguishes between “gaining control of the e-mail system” and what they call the “file system” which refers to the “massive [electronic] system housing many of the corporation’s memos, strategic presentations, financial spreadsheets, corporate intellectual property and plenty of other critical digital assets.”

The point is well taken – with so much emphasis on e-mail (much of it deservedly so) many companies don’t pay enough attention to how their employees are saving and storing electronic documents.

In my experience, many companies simply leave it up to individual departments or employees to determine where documents are stored and how they’re named. Obviously, each department must provide input into how their documents are stored, but a confusing collections of document storage practices will always make it more difficult to find the data you need to produce.

Link to column.