'E' in E-Discovery May Be for 'Expensive'

SAN FRANCISCO -- E-discovery continues to reshape the methods, strategies, and relationships of storage professionals within their organization.

And in truth, most storage pros are struggling with what data and documents need to be retained, the legal implications of backup versus archiving, and newly established tiers of discovery, according to Stephanie Mendelsohn, director of corporate records and electronic discovery for Genentech Inc., of South San Francisco, Calif.

Mendelsohn spoke this morning at the Storage Decisions conference here. And the discussion was a timely one, as the storage industry (okay, storage vendors) hailed the one-year anniversary of theoverhaul of the Federal Rules Civil Procedure.

FRCP and e-discovery create the potential for a wild goose chase for an email or document, which may or may not exist. Courts and corporations are understandably concerned about how to contain such searches; corporations are anxious to safeguard business assets, while courts don't want justice to be derived from the legal party with the biggest budget for searches, Mendelsohn said.

In a video clip, Supreme Court Justice Stephen Breyer was seen musing over the volumes of data that might be subject to search and the $4 million price tag cited to perform it. "Unless you're going to limit [e-discovery] costs or where you look, then justice is determined by wealth, not by the merits of the case," Breyer said, with a snort of disapproval.Storage pros are understandably less enthused about the new rules, which effectively require much closer coordination between IT and the legal department over murky issues like whether content generated in all formats and media get retained, or which version is considered the "master" version: paper or electronic? While the trend is to make the electronic version the master, or primary, version for storage and legal purposes, in some cases, both versions may be the master, Mendelsohn said. "You want the marginalia of the paper document and the version control of the electronic one," she said, adding this may not be the same for every department.

The digitization of voice mail and the ability to have such messages sent to an email inbox also creates a new set of storage headaches (and potential legal exposure). By not activating that feature of unified messaging, companies can limit the distribution potential and the necessary overhead required to store such content. "There are ways to meet the business need and still reduce the risk. Do you really need backups of unified messages for disaster recovery?" Mendelsohn asked the audience. Let the mitigating factor be whether there's a clear business purpose behind such retention, she added.

In parallel with FRCP changes is the expanding scope of what records management entails. It's always dealt with official records, whether for legal, regulatory, or business reasons. But this is increasingly being interpreted to mean "temporary records" as well, things like unofficial meeting minutes, or rounds of contract negotiations, or even the contract template. Mendelsohn suggested getting clear guidance from the legal department about just what types of records require retention­ and for how long.

Storage pros might also save themselves some headaches by getting better acquainted with first- and second-tier discovery distinctions, she said. The demarcation comes between what has to be preserved and reproduced (first tier), and that which just has to be preserved (second tier). "Judges may want to look at the most accessible materials first -- what's on the active systems and what can be easily gotten to," Mendelsohn said.

No legal precedents exist for which tier virtualized storage and virtual tape libraries might be considered. "There may be undue burden or expense to get to it," which judges will take consider in their decision making, Mendelsohn added. And in anticipation, attendees should start tracking the metrics and expense associated with storage and retrieval of data that's backed up and archived.0