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Businesses Generally Ignoring E-Discovery Rules 109

Posted by Zonk from the going-to-get-messy dept.
eweekhickins writes "A full year after the institution of new federal e-discovery court rules, only a minority of companies are paying attention. Keeping track of every IM, email, and document for a court order that may never come must seem like a tall order. Researcher Michael Osterman said that only 47 percent of companies have some kind of e-mail retention policy in place. 'I don't think it's difficult to understand the rules,' Osterman told eWEEK. 'I just think that it sometimes takes headline shock to make people move on some things.'"
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Businesses Generally Ignoring E-Discovery Rules More

Businesses Generally Ignoring E-Discovery Rules

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  • Apparently it doesnt hurt them enough (Score:3, Funny)

    by sethstorm ( 512897 ) * on Tuesday December 18, 2007 @12:06PM (#21740250) Homepage
    Time to raise the penalties for violations - and close off any foreign country escape route from this regulation.

    • Ignore The Law: I AM the judicial branch (Score:3, Funny)

      by Anonymous Coward

      'cause I [whitehouse.org] do.

      Cheers,
      W

    • Re: (Score:3, Insightful)

      by plague3106 ( 71849 )
      How about it's a stupid law and is being rightfully ignored? Ya, that's it. It places an undo burden on business, and really, they're being asked to keep evidence which may incriminate them. Might as well ask a rapist to keep detailed records too so they can be subpoenaed.

      • Re: (Score:3, Funny)

        by rootofevil ( 188401 )
        oh to have the burden of the undo! i should be so afflicted...

        undue burdens on the other hand, those are just not cool.

      • Re: (Score:1, Funny)

        by Anonymous Coward
        The "undo burden" is when your finger gets really tired from hitting ^z
      • while we're at it, maybe I should record all conversations I have too. just in case someone wants to know what I've been saying. you just never know.

        and my brain waves too. just in case some lawyer needs to see if I was thinking impure thoughts over the last year.

        I think we could all accept an implanted recording device in our skulls, don't you?

        • and my brain waves too. just in case some lawyer needs to see if I was thinking impure thoughts over the last year.

          There's a simple solution to that one. We just see if any presents are left in your stocking this Christmas. "He knows if you've been bad or good..." :P
      • "How about it's a stupid law and is being rightfully ignored? Ya, that's it. It places an undo burden on business, and really, they're being asked to keep evidence which may incriminate them. Might as well ask a rapist to keep detailed records too so they can be subpoenaed."

        I must have missed the first /. posting on this...it is news to me. I scanned over the old article, but, couldn't find WHAT all businesses are subject to this. This places a realy undue burden on small businesses. A small business has

        • Ones being investigated for a crime. (Score:5, Informative)

          by pavon ( 30274 ) on Tuesday December 18, 2007 @05:22PM (#21745048)
          This ruling is about what is and isn't considered destruction of evidence in a court case. The only business which may be required to retain more data that they already would are those who are being investigated for a crime. There are two parts.

          The first deals with data deleted prior to the start of an investigation. Basically if you have an data retention plan that states how long you keep documents for, and you follow that plan, then you cannot be charged with destruction of evidence. On the other hand if a bunch of documents relevant to an investigation just happen to be deleted in a manner that deviates from your normal behavior, then you can be.

          It doesn't matter what the plan is - it could be that you delete emails from the server immediately after they are download, or you can back them up for eternity, or anything in between - it is entirely up to you. For the sake of CYA, it is a good idea to have this policy documented, and to make sure it is followed closely, but you are not required by law to do so.

          The second part gives judges the ability to require companies to retain data relevant to an investigation that would otherwise be deleted as part of their normal data retention policy. This requires a court order, and is no different from dead-tree requirements. Again, you are not required by law to have a plan in place to do this, however, it is good idea to think about it so that you aren't scrambling to figure out how to deal with it if you ever are investigated.

          • Re: (Score:2)

            by icebike ( 68054 )
            > Basically if you have an data retention plan that states how long you keep
            > documents for, and you follow that plan, then you cannot be charged with
            > destruction of evidence.

            Have a plan and follow it? Sounds like a pretty close micro managing from the court if you ask me. Which clause of the constitution allows them to set such regulations?

            My plan it to never state my plan (oops, just violated that, but wait, its ok: read on) my plan states I get to decide on a case by case basis how long or if
        • "I scanned over the old article, but, couldn't find WHAT all businesses are subject to this."

          Any business that might be sued in federal court. So it applies to all businesses.On the other hand, all publicly traded companies were already subject to similar SEC regulations, so for them this was nothing new.
      • there's more reasons to keep this stuff for civil suits than criminal suits anyway.

        Many business are conducting business via email (or worse IM) Think not about "executives", but contractors or real estate agents always on the move sending instructions back to the office via blackberry to buy/sell or to approve a worked up quote. Things that need to be closed today, so checks can be written and the best price for the company obtained.

        That info needs to be captured... Your company needed that house sold now

    • Re: (Score:1)

      by tjstork ( 137384 )
      violations - and close off any foreign country escape route from this regulation.

      So, does this also mean that you would support my call for the Death Penalty for spammers? If I supported the Death Penalty for non-compliance in discovery, and you supported the Death Penalty for spammers, we could eliminate corporate evil and spammers. Heck, why not have the Death Penalty for DUI and Rape. We would have the perfect society, at least until we killed a shitpot full of people and still got spam from evil corp

    • Re: (Score:2, Funny)

      by jo42 ( 227475 )
      GWB, is that you? And, just what did happen to all those Whitehouse emails..?
  • They just don't care. In fact, I commend them for it.

    Wow, that's a rare sentiment for companies coming from me.

  • Or Maybe (Score:2, Interesting)

    by Atomm ( 945911 )
    it is a bad law that failed to consider the impact it would have on business to actually implement the requirements.

    • Re: (Score:2)

      by eln ( 21727 )
      It also constitutes cruel and unusual punishment for those poor paralegals who have to sift through all this crap during discovery.

    • More business for lawyers (Score:5, Insightful)

      by wsanders ( 114993 ) on Tuesday December 18, 2007 @12:19PM (#21740394) Homepage
      You inconsiderate clod, it creates nothing but opportunity for lawyers to charge endless fees for e-discovery. Imagine the new volumes of information available for them to charge $500 an hour to sift through! And if they can charge $1.50 per page to make copies of documents, imagine how much they can markup deleted email recovery services! And the damage awards they can demand from corporation-hating juries for failure to retain data that may or may not have any relevance to the case at hand.

      The opportunities are endless!

      • Re: (Score:2, Informative)

        by Arguendo ( 931986 )
        Actually, speaking as one lawyer who has had to sift through way too much e-discovery, I can tell you uncategorically that, no, we do not like earning fees sifting through your emails to co-workers about about the latest website or your boss's new haircut.

        PLEASE, PLEASE, PLEASE create a regular document retention policy that mandates the deletion of all unnecessary emails and other e-documents on a regular basis. You CAN delete these files and you should. But if you wait until the lawsuit is filed, it's

        • Re: (Score:2)

          by icebike ( 68054 )
          Better yet, just encrypt your hard drives and refuse th hand over the
          keys, invoking your right to avoid self incrimination.

          http://yro.slashdot.org/article.pl?sid=07/12/15/1459243 [slashdot.org]

          Check and Mate.

        • PLEASE, PLEASE, PLEASE create a regular document retention policy that mandates the deletion of all unnecessary emails and other e-documents on a regular basis. You CAN delete these files and you should. But if you wait until the lawsuit is filed, it's too late - and now we have to wade through all this crap. That's the point.

          actually, that is because you are looking at it the wrong way- I work for a company that actually does all of this for you- we do both active cases and retention programs with review, vetting, status codes, etc for ANY documents.
          Is it a pain, well, yes but that is my team in the company's job- to extract the data and run it through our terms and verify the status of these docs for final legal review that happens in-house-
          as a lawyer you should know that your job is to present a case which is why people

    • Re: (Score:2)

      by GiMP ( 10923 )
      Exactly.. what is the actual cost of this? What if a company's currently stored documents already reaches into hundreds of terabytes? I haven't looked into the law, but what about ISPs, email hosting providers? Does google need to store every email that has ever been stored on their servers? What about Yahoo, which often removes emails from user's inboxes automatically after a certain amount of time? Heck, what about standard hosting providers -- if someone bypasses your quotas and uploads a terabyte

      • Re: (Score:2)

        by Cally ( 10873 )
        You put forward a persuasive case outlining the shortcomings of requiring email retention. How, then, would you propose that corporate communications with bearing on matters which come to court are given protected status, to ensure that (eg) companies indulging in outrageous deliberate corporate malfeasance - Enron stylee, let's say - can't have a digital shredding party once a month and walk free when the cops arrive? You're not proposing we give up attempting to regulate commerce through commercial law, I
        • You could just stop caring about internal documents and eliminate or change the laws that depend on them. Treat the corporation as a 'black box,' in other words.

          I'm not sure why we should really give a shit about what goes on inside a company. What matters is what it does. If a corporation does something bad, punish it. I don't really care, and I don't think it should matter, whether people in the corporation "knew" what they were doing was bad, and that's mainly what the retention laws are all about. They

          • Re: (Score:3, Insightful)

            by Cally ( 10873 )

            I'm not sure why we should really give a shit about what goes on inside a company. What matters is what it does.

            Well IANAL so I can't give you a formal answer to that. However it doesn't take much thought to imagine a scenario where whether or not people inside the company knew certain things or not, and when they knew them, has significance regarding how long people go to jail, how much the company's fined, or whatever. As a random though experiment, supposing the wing falls off the fancy new Airbus super-jumbo and 800 people end up getting their 15 minutes of fame in the form of charred shreds of flesh hanging fro

            • Funny thing. I've always remembered his/her sig (as they post quite frequently on /.), and chuckled when I finally saw the Futurama episode the quote comes from.

        • Re: (Score:2)

          by GiMP ( 10923 )
          Companies do not need to retain a copy of every piece of paper sent or received, why make them store the digital equivalents? If they receive a letter from an outside party, they're not required to keep a copy. Moreover, private companies that act as common carriers, such as UPS and Fedex, do not need to maintain a copy of every document that they provide temporary storage for. While it would be much more difficult for UPS and Fedex to produce copies, they too would have significant problems providing the
      • ... Does google need to store every email that has ever been stored on their servers?

        ___
        They do and additionally every newsgroup post.
        Perhaps business will switch to gmail exactly for that reason?

    • Re: (Score:2)

      by Zordak ( 123132 )
      Or maybe it's not a "law" at all, but rather the Federal Rules of Civil Procedure, which only apply to parties in litigation in Federal court (or at the very most, those who reasonably anticipate they will be in litigation in federal court for a specific matter). Really, I don't see the story here. The new e-discovery rules do not impose onerous requirements on all businesses. They just prevent you from dumping data when you have that "Oh, crap, we're gonna get sued for this" moment.
  • Why is this tagged privacy? This applies to businesses, not people.

    • Re: (Score:3, Insightful)

      by Bryansix ( 761547 )
      Because people have a certain expectation of privacy in email communications even though they shouldn't if the email account is a work email account. Also workplaces ready chat is kind of sketchy. My work used to do it. Not anymore.
    • What business I conduct and with whom is proprietary information, and very much private. My client list is worth money to me, and what services I'm performing for those clients is worth even more. It's not public, and it would be worth a good deal to my competition. I might also discuss other things with my business partner, such as future marketing plans. Those are private as well.

      What the government wants is a complete record of everything, in case you might have evidence that could convict you of somethi
    • And businesses are owned, operated and staffed by what?
    • "noidentity" said: Why is this tagged privacy? This applies to businesses, not people.

      That statement is flat-out wrong. The Federal Rules of Civil Procedure apply to parties who are the subject of lawsuits (or third party subpoenas). It's often companies, but theu can apply to individuals, too.

      In many of the RIAA lawsuits, defendants have gotten into trouble for deleting information on the computers -- i.e., information which the RIAA contended was evidence that they were illegally sharing files.

      Most lawy
      • I think we're talking about two different things now. On the one hand, businesses being required to keep records communications for some number of months/years before deleting them. On the other, deletion of evidence after you become aware that you might be in court soon. Obviously the latter applies to everyone, not just businesses.
  • Is law for all companies or just Public corporations? Seems an excessive burden to put on small businesses?
    • I have not read the law and don't know who it pertains to, but if it did pertain to all business large and small, then yes, it is an excessive burden. Having a document repository doesn't just mean a spare hardrive. You have to have security measures (pretty extreme ones if it were my company) in order to maintain a constantly updated archive that doesn't give away your business secrets to the outside world. Especially if your growing, and moreso if your doing any kind of computer related work.

      Some small

      • Actually it applies not just to all businesses but to all entities that have been sued. Even individuals. Once you are sued or are aware you will be sued, you must retain all relevant material and turn it over during discovery. This isn't new, this has been the rule for the last century or so. What's new is things like e-mail and instant messaging, and companies going "Oh, that was done in IM, we don't keep records of that.". The e-discovery rules are merely the courts going "You knew you were being sued, y

        • Re: (Score:2)

          by Intron ( 870560 )
          The problem is that the law also applies to anyone who might be sued, which is everybody. A shareholder sues you because their stock lost $1 based on some bad decision that you made (like buying an email backup system). When their lawyer asks you for the data that you have already wiped, it's too late to say "I didn't think that anyone would ask about that."

          • Re: (Score:1)

            by elBart0 ( 444317 )
            I think that you may be confused.

            If you deleted the data, in the normal course of business, prior to being sued, you're fine. It's perfectly acceptable to delete records every N months, _if it's in your document retention policy_ and there is no legal obligation to retain the data (such as EEO).
            If you delete the data, after the suit has been filed, and it may pertain to the lawsuit in someway, you've broken the law.
            If you have back ups, you're not allowed to dump them, once you've been sued.

            Basically, once
      • That is my point!

        Everyone can be sued, most will be at some time in their life. Hell, even I am in the middle of arbitration at the moment, but it is a minor personal matter. I digress...

        If a small business have to maintain records for everything, each transaction, who made it, etc... and have it backed up regularly, it will cut into productive time. A business of 3 people loosing a 1 man hour a week IS SUBSTANTIAL. that's 4 hrs / month and 48 hrs a year on top of an allready slim margin. Think of a lo

  • The law should be overturned (Score:4, Insightful)

    by Bryansix ( 761547 ) on Tuesday December 18, 2007 @12:16PM (#21740352) Homepage
    The law is burdensome on businesses. Keeping track of email is one thing. Keeping all communication archived is ridiculous. We just came up with a solution to archiving email so we can finally delete some mailboxes off of our exchange boxes. My co-worker just wanted to purge the boxes and not back them up. I convinced him that even if this law didn't exist the mail may be useful for us in a court case so it would be worth keeping.

    Now we used to use Spector 360 which would satify this ridiculously overbroad law. The software is nuts though and opens all kinds of issues like keeping the data secure since it captures all keystrokes and so people may have CC#, SSN or bank account numbers in their database records kept by this program.
    When we moved we stopped using the program.

    • Re: (Score:3, Informative)

      by Zordak ( 123132 )

      This "law" should not be "overturned." It is not a "law." It is Rules of Civil Procedure for parties in litigation in Federal court. You can read them here [house.gov]. The rule you want is R. 34.

      This post does not constitute legal advice and is not endorsed by Jackson Walker LLP

      • Re: (Score:2)

        by Zordak ( 123132 )
        I should also mention that R. 37 has a safe harbor provision. "Absent exceptional circumstances, a court may not impose sanctions under these rules on a party for failing to provide electronically stored information lost as a result of the routine, good-faith operation of an electronic information system." If your normal policy is to dump certain stuff at certain times, you won't get smacked unless it looks like you did it in bad faith (e.g., implemented the policy to screw adverse litigants or something)
        • Regarding the Rule 37 "safe harbor", it's really not very helpful to most litigants, because, "Good faith in the routine operation of an information system may involve a party's intervention to modify or supsend certain fe atures of that routine operation in order to prevent the loss of information, if that information is subject to a preservation obligation." See Advisory Committee Notes to Rule 37(f).

          So if your normal policy is that some "automatic" routine operates to delete potentially relevant (and "a

          • Re: (Score:2)

            by Zordak ( 123132 )
            I agree, but that's still only upon reasonable anticipation of litigation. R. 37 is protecting a business from getting hit with sanctions for just going about their business before they know they're getting sued. And that date is even self-policing in many cases. On one hand, the litigant may want to postpone the date of reasonable anticipation to postpone the duty to preserve. On the other hand, the same litigant often wants to make the date of reasonable anticipation early so he/she/it can claim privi
    • This post evinces a basic misunderstanding of your obligations under this new rule. A company that is not sued or is not reasonably anticipating a lawsuit may have a data retention policy, which is commonly "we destroy all e-mails after ninety days, and we do not keep any backups." Once they are sued or notified of a suit, then they have to suspend that policy and keep the e-mails and electronic documents created by the relevant executives and employees. The company has a problem only if the data destructio
      • Right, I didn't understand how the ruls applied. Thanks for the info. I wonder how this works for companies who are always being sued at all times.

  • the FRCP (Score:5, Informative)

    by theMerovingian ( 722983 ) on Tuesday December 18, 2007 @12:18PM (#21740372) Journal

    The Federal Rules of Civil Procedure are being grossly mischaracterized here. The main purpose of the changes is to make it so companies can't intentionally obfuscate their data storage in order either 1) increase the timeline for digital discovery; or 2) increase the costs (especially to the non-business plaintiff) for digital discovery.

    The FRCP are not a set of regulations to govern businesses, it just means that parties with digital information will bear the burden to produce it in the event of a lawsuit. Depending on the frequency with which your company is sued, it may or may not be a good idea to make it faster to access your backups.

    You aren't under an obligation to save all electronic corresponce unless you are in a heavily regulated industry with special rules requiring that. However, anyone who deletes or destroys documents once a court order has been issued is in pretty big trouble if they get caught. This has been true long before the advent of email.

    IMPORTANT NOTE: I am not a lawyer, this is not legal advice, there is no formation of attorney client privilege, this does not serve as an offer to represent you, your family, or anyone you have ever met, consult the advice of a licensed attorney in your jurisdiction before taking any action, the forgoing is for informational and educational purposes only, and any and all warranties inherent in this post whether express or implied are hereby disclaimed.

    • Re: (Score:1, Funny)

      by Anonymous Coward
      IMPORTANT NOTE: I am not a lawyer...

      But apparently you know one seesh.

      *Anonymous Coward is not responsible for anything ever. Other than the standard issue trolling of which this comment is not. Some restrictions apply, void where prohibited.
    • It doesn't so much matter what your policy is, so long as your policy is consistent. If your policy is that e-mails are kept for one week and then deleted, that's ok. What is not ok is if you normally keep e-mails for a year, but then suddenly delete everything older when you get sued. There aren't any over all rules for what your retention has to be, however you can't change your policies to try and avoid handing over data.

      So if your policy is that nothing gets kept, you have no backups, no retention, you
    • Do you have that IMPORTANT NOTE in your copy-paste clipboard and use it on every posting you make on the web? The 3 line disclaimer is not necessary. "IANAL" suffices, although you sound mighty like one of them.
    • This poster is absolutely correct. there is no requirement to retain all your electronic records. See my post "PLEASE help stop the FUD" below.

    • Re: (Score:2)

      by Cally ( 10873 )

      IMPORTANT NOTE: I am not a lawyer, this is not legal advice, there is no formation of attorney client privilege, this does not serve as an offer to represent you, your family, or anyone you have ever met, consult the advice of a licensed attorney in your jurisdiction before taking any action, the forgoing is for informational and educational purposes only, and any and all warranties inherent in this post whether express or implied are hereby disclaimed.

      Awww, c'mon,.. don't spoil it for the kids!

    • Re: (Score:3, Informative)

      by Brian See ( 11276 )
      I am a lawyer and my practice focuses on eDiscovery. In other words, I translate between lawyers and people who read /.

      Lots of interesting comments in this thread. There is a lot of FUD out there (like that's news). I hardly know where to start.

      First, sophisticated litigants have seen increased costs from eDiscovery compliance, because "Joe Average" lawyer on the other side is getting more sophisticated about these issues. The new eDiscovery rules require companies to make pretty specific disclosures r
  • I suspect that one of the reasons many firms are not complying with this is that the job seems so overwhelming, they don't know where to start. "Old tech" documents were created and saved (or not) under a kind of natural discipline, stemming from the fact that the cost of creating them was obvious and non-trivial. You might make off-the-cuff smart-ass comments at the water cooler or in the lunchroom, but you weren't likely to put them in a memo.

    E-mails and IMs give the illusion of being almost costless

  • Setting up a backup schedule so that you're basically keeping all email is freaking expensive, even when you're only doing incrementals. Tape "rotation"? Forget that. It's tape storage for ever and ever.

    You need drives, and tape storage, and a tape inventory system, and let's not forget a never-ending stream of tapes.

    • Go beyond the storage issue: how do you sift through all that communication to find what you're looking for? Simple searches? Semantic searches? A room full of $8 per hour interns reading every email and IM? Frankly it's impractical.

  • You can tell companies aren't paying attention. (Score:4, Insightful)

    by olddotter ( 638430 ) on Tuesday December 18, 2007 @12:23PM (#21740448) Homepage
    If they were, their lobbists would be be crawling all over this. The cost of capturing and storing all of the digital communications made by employees is non trivial. I know of one company just trying to give their lawyers access to query and retain e-mails. That project is a mess. I can't imagine trying to keep instant messaging along with, etc., etc. .....

  • I wonder if they also retain all incoming SPAM mail. That would be interesting.
  • If you want to teach people through headlines, the White House has deleted 10 Million emails and is getting nothing -- not even a slap on the wrist for it.

    They're just teaching through example.

    There's no way you can have a more egregious example of failure to comply with federal document retention laws, or a more important reason to retain the emails, but absolutely no punishment seems to be forthcoming. Neither half of our political party seems to be even pretending to want to do anything about it.

    So wh
  • Thanks, I'll be here all day. ;-)

  • This is my business (Score:5, Informative)

    by gurps_npc ( 621217 ) on Tuesday December 18, 2007 @12:39PM (#21740634) Homepage
    I do e-discovery related document loading and exporting.

    I can tell you the following:

    1. It is a big business.

    2. It is not "pointless".

    3. The reason the laws were passed is that people were intentionally deleting documents or worse LYING and claiming they had deleted it when back ups were clearly present. They lied because of the expense it would take to recover the back-ups. Honestly, was it that hard to have the lawyers talk directly to the tech people, instead of too middleman that cared more about money than their legal responsibilities?

    4. The law at heart simply states that if you have documents then deleting it BECAUSE of a legal action is illegal.

    5. The law clearly allows you to routinely delete documents, say 1/year, or even every month.

    6. All it really takes to satisfy the law is a commitment to a reasonable data-retention policy. The only businesses that don't or can't comply are

    A. those that have been giving their IT department the short-shift, not providing a reasonable amount of cash for data and back-ups.

    B. Those that don't realize that after you are SUED or CHARGED with a crime means you have to spend money on the law-suit. That includes the responsibility of saving and organzing the data you collected.

    • Re: (Score:2)

      by TheCarp ( 96830 ) *
      > 4. The law at heart simply states that if you have documents then deleting it BECAUSE of a legal action is illegal.

      Though, wasn't that true before?

      I clearly remember this coming up in a discussion of backup retention policy 5 years ago. Basically what was stated then was that we needed a policy for backup destruction so that we could get rid of backups because if there were ever a legal case, and we didn't have such a policy, then attempting to purge old backups could be seen as trying to destroy evide
      • While it was illegal before, the penalties were not clearly stated. It was left up to the judges, some of whom gave simple verbal warnings.

        Sort of the same way it is illegal for a government to deny you the right to free speech. There is no jail term or monetary fine declared by law. Now they give actual penalties.

        The law basically made everything a lot more explicit.

  • The federal rules of discovery haven't really changed - this is just a tweak to address the concerns of the digital era. The government does not want you to keep everything forever, in fact the government is not usually party to these civil suits - besides most corporations waive privilege in government investigations to show good faith.
    The primary goal of these changes are to get lawyers to talk about discovery in a meet-and-confer as early as possible. Too many judges were spending too much time dealing w

  • Too Expensive (Score:2, Interesting)

    by pickapeppa ( 731249 )
    This kind of archiving would be nigh impossible for some businesses, no matter how heavily regulated. Its partially a matter of resource allocation. I do a nightly backup and a monthly backup for an organization that deals with kids, medical records, and large donations (i.e. heavily scrutinized). 80 percent + of donations must be spent on program services, so I have a limited budget. If something is written and deleted betwixt the monthly backup and the earliest nightly, its gone. There's no practical w
  • Silicon Flatirons at CU Law hosted a roundtable last week on E-Discovery. A whitepaper is forthcoming soon, but there were several recurring themes. 1) eDiscovery disputes are largely regional. There are a lot of pitched battles happening on the east coast (esp. NY and NJ) and in California; in the middle of the country (Texas, Colorado, Chicago), not so much. 2) Mutually assured destruction - lots of companies in litigation stay away from bringing up eDiscovery issues because they know it will be extreme

    • Re: (Score:1)

      by tarp ( 95957 )
      There is already software out there to sift through hundreds of thousands of documents or e-mails to find the relevant e-mails that contain the "smoking gun" evidence. I know because I work for a company, Extractiva, that has been developing and selling e-discovery software for almost 9 years. The basic process is to extract the data from e-mail stores and container files, then create an index that can be searched. You can also image everything into TIFF or PDF so it is easy to review. Other tools exist for
      • Sorry, perhaps I wasn't clear - obviously some software exists, but the indication from the panel (mostly attorneys and vendors) was that the software simply isn't fast enough to make it cost-effective to launch into eDiscovery disputes at will.

  • PLEASE help stop the FUD!!! (Score:4, Informative)

    by spiedrazer ( 555388 ) on Tuesday December 18, 2007 @01:00PM (#21740964) Homepage
    OK everybody, listen up!!

    Despite what the vendors who produce e-mail archiving software may say, there is NO requirement that ANYONE archive all their e-mail/chat/word docs. etc. for potential litigation!!!

    The rules say that, once you know that there is a legal case (or can reasonably expect that an issue may lead to legal action) you can't destroy evidence that could be used in the case. The federal rules actually spend more time outlining all the valid reasons you may have for destroying/deleting old e-mails or other correspondence.

    There are a lot of vendors generating a lot of FUD about this issue, and even more clueless tech writers and glorified corporate publicity rags like eSchool news to perpetuate it. Don't be sucked in!

    Yes, your company/agency should have a retentions policy, but that doesn't mean to retain everything! It should spell out how often you delete materials that are no longer deemed necessary. As long as you follow that policy, you are covered if you delete something that comes up later in an un-anticipated legal action! Once you are aware of a legal action, it is your responsibility to identify and secure any documentation in any form that can have bearing on the case.

  • Of course everyone is ignoring it, we all know a copy of every email/IM/packet etc. exists in the basement of the San Francisco AT&T switching center (and I'm sure many more). Why we should we store all this shit when "THE MAN" already has multiple copies, cross referenced, sourced, vetted and all the boilerplate leagalese to do/charge whatever they want.
  • I'm the sysadmin at a lawfirm in the Chicagoland area, and we've been following these guidelines for a couple years. However, it is quite a hassle, even though we only have 150 employees. We keep tape backups on a rotating 14-day schedule, with End of Month and End of Year retains kept indefinitely - offsite in a fireproof safe, natch. The amount of storage space we need will soon require us to move from LTO-2 to LTO-4 format and buy an even larger safe.

    Most companies may not need to follow these guide

  • Keep any documentation that can potentially help you, delete the stuff that you know could hurt you.


  • it's a bullshit law. so there's no reason to follow it.
    there's always denyability (i.e. we don't allow IM, so there is no record of it, because it doesn't exist)...
    there's also the "don't incriminate yourself" thing (right to remain silent).

    while we're at it, maybe I should record all conversations I have too. just in case some one want to see wat I've been saying.
    and my brain waves. just in case some lawyer needs to see if I was thinking impure thoughts over the last year.

    like i said. stupid law.
    • Hear hear, you mirror my sentiments exactly. This the the kind of crap Lawyers love. This Judge can stuff it.

    • Re: (Score:3, Informative)

      by RMH101 ( 636144 )
      You may argue with the law, but if you ignore it you could end up in prison. As could your CIO. Right or wrong, you'd be stupid to ignore it if you're a company that trades in the US.

  • I never really understood this kind of thing, even paper-based discovery and document retention, and it's always sent my bullshit meter off the scale.

    I used to work in a law firm, creating and maintaining a DB of old documents (pdf scans of old paper files). The whole goal was to be able to produce documents when asked by opponent's legal team and sanctioned by statute or by judge. So here I am sitting with a bunch of pdf files to potentially produce as evidence.

    Now, they never asked me, and I never wou

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