Examining eDiscovery

To fully understand what electronic discovery (ediscovery) is, you must understand the legal profession and the litigation process. During litigation, both sides exchange information about the case. This can be in the form of depositions, interrogatories and document exchange. The rules governing this process come from the Federal Rules of Civil Procedure for litigation in Federal court or your state rules of civil procedure for state cases.

The legal system itself is slow and methodical by design. This can lead to a great deal of confusion when new laws and factual situations come into effect because law is never really set until the facts are litigated and make their way through the appellate process. In general, the standard answer you will receive from an attorney on just about any question is, "it depends." Within areas of emerging law, especially those surrounding technology, the answer is, "We don't know yet."

Unlike regulations such as Sarbanes-Oxley, which placed many new requirements directly on organizations with a deadline for compliance, the electronic discovery amendments affect them only through the litigation process. Many companies faced with tight budgets aren't preparing in advance for litigation. This is clearly their right to do so. This bad decision can lead to astronomical costs of litigation when it finally does occur.

Penalties for failing to comply with a duty to preserve data range from monetary sanctions all the way to an "adverse inference" instruction. In this situation, a jury is instructed to assume any files and communications not produced were harmful to the defendant. Such an instruction all but guarantees defeat for a defendant.

Increasingly, judges are also holding attorneys themselves responsible for the negligent acts of their clients in preparing for discovery.

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Source: enterpriseitplanet.com
By: Sonny Discini