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.

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And don't leave business leaders out of the discussion. "Too many CIOs think of litigation as something that belongs to the legal department," says Leslie Wharton, who heads the e-discovery team at the Arnold and Porter law firm. "Litigation is something that belongs to the company, and whether the company is a plaintiff or defendant, the company [as a whole] must be able to meet document preservation and production obligations."

Such preparation makes you "discovery ready," according to Mark Reichenbach, the former director of discovery and regulatory response with Merrill Lynch (now vice president, client and industry development with vendor MetaLincs), rather than needing to react to litigation or regulatory investigations when they come up. Some companies have even begun to appoint cross-functional e-discovery teams to address the issue, adds Zazzera, run either by IT or the general counsel's office.

2. Get rid of unneeded documents.

For example, if the statute of limitations has passed in a tax case or environmental issue, delete the associated records. Many companies keep data from legacy systems that are obsolete, so there's no business reason—and unlikely any legal reason—to have them around, observes Julie Brickell, associate general counsel at Altria Corporate Services, which handles tobacco litigation for affiliate Philip Morris USA.

Defining what you should preserve is murky, however, and depends on what kind of business you're in. Most important, says Zazzera, is to have a consistent policy for what is permissible to delete—and what is not. Have the same rules for e-mail as for other electronic documents.

"You really have to think through a policy about everything," Zazzera says. "What records you are keeping and how you are keeping them." Most companies will say that all electronic and paper documents generated by company employees on company property can become part of the e-discovery record. But there are gray areas. For example, if a person sends a personal e-mail using a company computer, should that be turned over in e-discovery? And if a person sends e-mail from his own computer about company business, can it be protected?

3. Know where the e-mails are.

Have a map showing the location of every e-mail you keep, and how to retrieve it. Make sure the IT department and business units know where to find the material.

Howrey centralized all its e-mail servers in one data center in Ashburn, Va., including e-mail from its office in Taiwan, according to CIO Brian Conlon. Data from its offices in Europe is consolidated in London. By storing all e-mail in just a few places, it's easier to comply quickly with discovery orders. The law firm also plans to apply technology to help it catalog paper files. In the next year, Conlon plans to deploy radio frequency identification (RFID) to find paper documents, which could make it much easier to search for hard copies of documents.

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