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How to Comply With E-Discovery Rules Before You're Hit With a Lawsuit

Your corporate e-mail is now choice evidence when—not if—your company is sued. Here are five steps to help you stay on the right side of the law.

By Judi Hasson

October 30, 2007 — CIO — No one wants to be sued, that's for sure. But in today's litigious world, it is rare that any company can escape a lawsuit in its business life. It is becoming the CIO's job to make sure, when the time comes, that IT is ready for the onslaught of directives to turn over all electronic documents in a legal case. And that's where the headaches start for any IT department that does not have a good e-mail retention and retrieval system.

The need for better electronic record keeping evolved nearly a year ago, when the federal government overhauled its rules of civil procedure and made electronic documents an official part of the discovery process during a lawsuit. The rules for what is called "e-discovery" that took effect Dec. 1, 2006, make production of electronic documents as important as turning over hard copies of material in any legal case. Companies typically have 30 days to answer any e-discovery request (though the court may grant extensions) and face thousands of dollars in fines—not to mention risk forfeiting the case—if they fail to respond promptly.

In this new world that marries the legal system with technology, the CIO is adding company archivist to his job description. IT departments must work with the legal department to come up with a plan that saves necessary e-mails and makes them easily retrievable. Yet there are few rules for setting up an electronic records management system, training employees to catalog their e-mail and creating a standard procedure so employees consistently follow the procedures to turn over electronic documents quickly. And so, many CIOs are still scrambling to organize their corporate e-mail and keep track of these records in a comprehensive way.

The key to compliance with e-discovery rules, say legal experts and IT leaders who have already tackled the problem, is to establish enterprisewide document management and retention practices for e-mail and other types of digital documents, then deploy the appropriate software to support them. "You can achieve a lot of protection, reduce your risk and reduce the cost of discovery by adopting reasonable, repeatable and scalable processes and tools," says John Rosenthal, a partner and co-chair of the e-discovery committee at Howrey, a Washington, D.C., law firm.

Here are ways to get ready for the inevitable:

1. Get in sync with legal and business leaders.

"The problem with e-discovery is the first time it hits your radar screen is when the general counsel calls and tells you what the court wants," says Paul Zazzera, a consultant and former CIO at Time. To mitigate such surprises, IT and legal should work to develop processes, policies and tools for saving e-mail that everyone in the company follows. "A CIO and the legal department should be fused at the hip," Zazzera says.

 

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