Electronic Discovery: Are You Really Ready?

CIO — IT executives are overconfident about their ability to respond to litigation events due to recent infrastructure investments to address new e-discovery rules, according to a new research report by IDC (a sister company to CIO.com's publisher).

In late 2007, FTI Consulting Inc. commissioned IDC to survey 118 IT executives to evaluate their knowledge of their firms' current electronic discovery and regulatory audit activities, assess the current state of litigation response and readiness among U.S. businesses, and identify current and planned technology investment priorities in support of litigation response and readiness initiatives.

The study concluded that IT executives are confident about their current abilities to respond to a litigation event, given recent investments in records management, archiving and information retention intended to address some of the amended Federal Rules of Civil Procedure (FRCP) for electronic discovery.

However, the data from the survey highlights an urgent need for organizations to adopt standardized policies and IT practices for activities related to the identification, preservation and collection of potentially responsive data. The existence of ad hoc and manual business processes exposes a litigant firm to potential challenges to its litigation hold practices.

Is Your Corporate Information Infrastructure Ready for a Litigation Event?

The tight deadlines imposed by Rule 26(f), combined with the continued explosion of ESI (electronically stored information), require corporations to adopt a records management and information retention practice (also known as information management), an e-discovery response plan, and a legal-hold best practice. Corporations need to accomplish these activities so that they are able to meet their expected conduct and responsibilities—and, more important, have sufficient information to craft their e-discovery and legal strategies when needed.

Nearly 79 percent of the IT executives surveyed rated their ability to respond to a litigation event from above average (rating of 4 on a scale of 1 to 5) to very well prepared (rating of 5 on a scale of 1 to 5). This confidence is primarily based on existing records management and information retention infrastructure investments. Companies deployed records management, messaging, document management, archiving and information security solutions to demonstrate the consistent enforcement of their records management and information retention policies.

These investments serve as the first line of defense against "spoliation." The visibility that a well-developed records management and information retention practice provides facilitates legal strategy. However, a separate IDC survey, "Active Archiving: Preservation, Retention and Reuse," conducted in the summer of 2007, suggests that corporate records management and information retention practices are, for the most part, application-specific and relatively immature. Corporations are only starting to address their potential legal liabilities from the absence of a well-defined governance practice for other content types such as Microsoft SharePoint, voice and video. A large majority are also grappling with the disposition of legacy data.

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