Why? Because before shuttling documents over to opposing attorneys, each item must be carefully examined for relevance and admissibility. Saving every E-mail and file ever generated within a company would require spending a whole lot of money on attorneys and researchers to pore over that vast store of information. These data retrievers, who tend to bill by the hour, generally move with all the speed of a sloth on Robitussin.
Given that prospect, it’s hardly surprising that a growing number of companies are seeking outside help to establish E-discovery best practices. Mostly, these businesses are turning to law firms and content managers that have a specialty practice in E-compliance, which is also a thriving industry. Technology consultancy Gartner believes sales of E-discovery software and advisory services will grow at a 30 percent annual clip through 2010. One survey estimates revenues for the industry will top $2.7 billion this year alone.
Typically, E-discovery advisers help a business set up an electronic-discovery policy: that is, what gets saved, when, and for how long. Once the policy has been created, a specialized technology (known as enterprise content management, or ECM) does the work of storing and tracking corporate documents. “When someone puts something into a content management system,” explains one consultant, “a rule is automatically associated with it for its retention.”
Chuck Piotrowski, records manager at Central Vermont Public Service, an energy utility located in Rutland, says ECM software has made it much easier for him to meet E-discovery requests. “It’s a supermarket of corporate information that I can walk into,” he says. “I know that I can go down an aisle and find the information I need on a specific shelf.”
The systems are not foolproof, but then again, they may not have to be. “There’s nothing in these rules that says things have to be perfect,” notes Bill Forquer, executive vice president of compliance solutions business at document-management specialist Open Text. “What it does say is that you’ve got to have a process in place, you’ve got to be following it, and you’ve got to show evidence that you’re following it.”
Moreover, the new rules provide a universally recognized E-discovery framework, meaning companies no longer have to guess at the appropriate way of responding to E-discovery requests. “Rules were being developed on a haphazard basis around the country by individual judges,” says Greenbaum. “There was really no consistency.”
Consultants also point out that the law offers a new safe-harbor provision — Rule 37(f) — that acknowledges that data can be inadvertently altered or lost during routine IT operations. Admittedly, a company failing to cough up requested data must provide documented proof of good-faith attempts to preserve the information. That effort alone could prove to be an expensive, uphill slog.
Still, 37(f) does make it more difficult for judges to penalize firms for failing to provide data that was genuinely lost. Greenbaum views the rule as a safety valve. “It makes sense,” he says. “Nobody is going to be sanctioned for acting in good faith.”
John Edwards, a frequent contributor to CFO, is the author of The Geeks of War.
For companies that still back up data on tape cartridges, Rule 26(B)(2) may present a possible financial lifeline. It allows a business to declare such offline information inaccessible, due to the difficulty and cost of retrieving tape-stored data. But managers intrigued by this apparent loophole may want to think twice. In these cases, the burden of proof rests on the company making the it’s-on-tape-so-we-can’t-get-it-(no, really) defense. The rule also allows a data seeker to demand sampling to verify the data’s relevance. If that happens, a corporate defendant may have to pay for expensive data restorations by outside vendors — the exact thing the defendant was trying to avoid in the first place. For information stored on now-obsolete formats, the cost could be very high. — J.E.