CEOs and their general counsels are worried about electronic discovery. And with good reason: today's big-money lawsuits often ride on a few key e-mails or other e-records, and the law around e-discovery is evolving and complex. In the last several years, companies have been sanctioned for losing or deleting e-mails, the new federal rules put e-records at the center of discovery, and Sarbanes-Oxley imposes stiff penalties for improperly destroying records. And to cause more anxiety, e-records are usually spread across the company in different computer systems, managed inconsistently, and many companies' IT and legal teams rarely talk to each other. All this means increased risk, and CEOs understandably give their lawyers a direct order: Do something.
A general counsel usually reacts by retaining an outside lawyer who specializes in e-discovery and records management. It's a smart first move. The lawyer reviews all parts of the company's e-discovery "readiness" and reports back, usually with several specific and good recommendations. Among other things, most experts in this area advise a company to implement a 45-day e-mail delete policy; to recycle backup tapes every 30 days; and to implement a "litigation hold" plan. Once implemented, all of these recommendations will help reduce the company's risk.
The rub is implementation. However well intentioned, the outside lawyer drops her report in the general counsel's office and leaves -- review complete, recommendations made. The general counsel then delegates implementation to someone on her staff, say an associate general counsel. The AGC in turn calls the company's deputy chief technology officer to discuss implementation. As an example, take the 45-day e-mail delete policy. The conversation goes something like this:
AGC: Hey John, wanted to talk about implementing a few recommendations we just received from an outside lawyer. The guy's an expert in e-discovery and e-records. Knows his stuff.
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Source: law.com
By: Adam L. Rosman
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