Network Computing is part of the Informa Tech Division of Informa PLC

This site is operated by a business or businesses owned by Informa PLC and all copyright resides with them. Informa PLC's registered office is 5 Howick Place, London SW1P 1WG. Registered in England and Wales. Number 8860726.

Policy Workbook: E-Discovery: Page 4 of 7

For the IT manager, the challenge starts with locating, collecting and delivering the required information, and that's where policy should begin as well.

Once company information is subpoenaed for discovery purposes the data becomes evidence and should be placed on what's known as a "litigation hold" to protect it from loss or modification. At this point, a company is legally bound to supply that information accurately, on deadline and in a useful format. To answer these needs there is a growing interest in e-discovery-specific tools from major archive and storage vendors that are focused on improving the search, auditing and access control of the wide range of stored data that could become part of a legal battle. These products include PSS Systems' Atlas ERM and LCC, Renew Data's eDiscoveryNow, Symantec's Enterprise Vault and Zantaz's Introspect.

Relevant data must be kept meticulously intact and include metadata that verifies its authenticity and accuracy, such as time/date stamps, header information on e-mail, and attachments.

One of the dangers of e-discovery data collection revolves around the issue of spoliation, legalese for the destruction or alteration of evidence or the failure to preserve evidence in pending or "reasonably foreseeable" litigation. We all know that data regularly gets lost or damaged, but in the case of information requested in a lawsuit, the court will determine whether the data loss was accidental or intentional. This may result in court-imposed sanctions, and judges have broad discretion on ruling in evidentiary issues like these. There have been cases where such sanctions strongly contributed to the loss of multimillion dollar lawsuits. One notable example is Residential Funding Corp. v. DeGeorge Financial Corp., where a $96.4 million jury verdict hinged on the plaintiff's failure to produce requested e-mails. A longstanding policy dictating that certain e-mail stores be purged at specific intervals could demonstrate that deletion of a given document was not a deliberate attempt at obstruction, but part of your message-storage management.

Your policy should also spell out when it's time to call in an expert. Many companies choose to handle e-discovery collection in-house, and this can be done safely, provided the process is carefully managed and assigned to qualified, competent personnel using the correct tools and following documented procedures, which should be developed in concert with legal counsel.