A Year Later — Rough Waters Ahead for e-Discovery and the New Federal Rules of Civil Procedure

By Beryl Howell and Rick Wolf 

Escalating legal risks are forcing organizations to bring order to sprawling information technology and telecommunication systems. According to the 2006 Business Roundtable Survey, chief executive officers rank litigation among their top cost pressures, behind only health care and energy costs. Other surveys show that most organizations lack effective and enforceable records management policies; and ediscovery readiness tops the list of litigation concerns for corporate law departments. And no wonder: Companies have faced stiff penalties for failing to manage, preserve, and efficiently produce electronically stored information in discovery. As a principal evidentiary source, email content is yielding plea bargains and early settlements for prosecutors, regulators, and private litigants.

When litigation looms, ineffective corporate records management practices can expose organizations to legal problems that extend beyond the litigation itself. At the start of every civil or criminal matter-even before formal proceedings have begun-you have to make key decisions about what data must be preserved: Do email or file system backup tape recycling schedules need to be suspended, and if so, for how long? Do automatic deletion system settings that limit the size or content date range of email boxes have to be modified? Does a computer “refresh” have to be delayed? Do marketing materials on corporate websites have to be preserved before being updated? Your management team must work together to have ready answers to these and other such questions, as law departments alone cannot perfect the varied business processes and systems necessary to manage electronically stored information.

Click here for a complete copy of Rough Waters Ahead for e-Discovery and the New Federal Rules of Civil Procedure.

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