VeBridge News: 1-12-07

Business Lexington Article - Deleted but Not Forgotten

By Paul Engel
Guest writer

December 1, 2006, marked the beginning of the end for what is termed the digital divide. With the passage of amendments to the Federal Rules of Civil Procedures (FRCP), paper and electronic documents are now on a level playing field. Statistically speaking, according to Kenneth J. Wither’s presentation on Electronic Discovery, the Challenges and Opportunities of Electronic Evidence, 93 percent of information created today is first generated in digital format. Ponder this: 70 percent of corporate records may be stored in electronic format (The Sedona Principles, May 16, 2000) and 30 percent of electronic information is never printed to paper (The Sedona Principles, 2001). Moreover, the Radicati Group estimates there are 578 million e-mail users generating approximately 85 e-mails per day. The Gartner Group expects the use of e-mail to continue to grow at a rate of 40 percent per year. We are, without question, in the midst of the electronic age.

By definition

Electronically Stored Information (ESI), a term used in the new FRCP, is digital information dispersed throughout the organization. By definition, ESI includes writings, drawings, graphs, charts, photographs, sound recordings, images, and other data or data compilations stored in any medium that can be translated into a reasonably useable form. E-mails, cell and PDA photos, voice mail, online business, video conferencing, and instant messages are just a few examples of ESI. The collection and production of ESI in the legal community is referred to as Electronic Document Discovery (EDD).

Know the rules of the game

Keys to playing the EDD game include preservation, production, and privilege. At a glance, the new FRCP address the following:

Rule 16 – Addresses the issue of data accessibility, deliverable format, and ground rules for preservation. Typically, when there is undue burden or cost, a party is only required to identify the electronic information category or type and to justify why the records are not reasonably accessible. However, a court may make the final ruling and require production of these records anyway. Regardless, parties are required to preserve the information, even when production is not required.
 
Rule 26 – Initial Disclosures, Discovery Scope and Limitations, and Claims of Privilege are all part of this rule. A discovery plan may include where the discoverable data is located, how ESI is preserved, the time and cost involved in retrieving ESI, how ESI can be searched and retrieved, what data is privileged and in what format ESI can be produced (“New Rules for E-Discovery,” The Information Management Journal, November/December 2006).

Rule 34 – This rule levels the playing field between electronic data and paper documents in the discovery process. A Rule 34 request for production of documents is understood to encompass electronically stored information unless discovery in the action has clearly distinguished between ESI and paper documents.

Rule 37 – Referred to as the Safe Harbor rule, this provision stresses the importance of establishing the routine, good-faith operation of an information system. The rule creates a “safe harbor” against sanctions for loss of electronic data due to normal operations of computer systems.

Discovery Response Plan

Corporate readiness and preparedness is priceless in a world where precedent has already been established in failures to follow the FRCP. A recent article in the Lexington Herald-Leader dated December 4, 2006, noted in a landmark case, USB AG vs. Laura Zubulake, the court awarded $29 million to the plaintiff in a discrimination matter solely due to the manner in which e-mail purging had been handled.

What previously was thought of as “untouchable and virtual” is now tangible, discoverable, and accessible. As a result, an organization’s prior focus on document storage has now shifting to document access and retrieval. With this shift, organizations are seeking professional consulting services to assist with developing and implementing a Discovery Response Plan (DRP). A DRP details your organization’s data retention, archival, and retrieval standards and guidelines, thereby formalizing your organization’s discovery preparedness. The firms providing these DRPs are often able to work with the client to implement a Discovery Response System (DRS) so that the company is prepared in the event of litigation and can save considerable collection costs and time.

The bottom line

With all that said, the bottom line is that electronic information now falls under much the same rules as those typically associated with paper documents. It is vitally important to address your ESI, your potential litigation risk and your plan for the preservation and production of this information. Companies with a plan will stand a better chance of prevailing in litigation and will have piece of mind knowing that they will not be subject to charges of destroying or “spoiling” evidence.

Paul Engel is president/CTO of VeBridge, a Lexington-based provider of document management and document scanning services including litigation support, imaging, training, consulting and systems integration for a broad range of businesses, law firms and government entities.