eDiscovery: Communication Breakdown Between IT and Legal Departments
EDiscovery law is full of cautionary tales about miscommunication between IT departments and legal departments. When it comes to electronic records management, lawyers and technical professionals have historically not spoken the same language.
For example, a breakdown in communications spelled disaster for a pharmaceutical company in litigation over the Fen/phen diet drug. Plaintiffs said the drug hurt patients and sued. In the discovery phase of the lawsuit, plaintiffs requested email records. On numerous occasions, counsel for the company said there were no backup tapes containing email because counsel understood the IT department to say that there were no such tapes. However, a more careful investigation eventually revealed that there had been some tapes -- after the lawsuit started -- on which email had been stored. These tapes were created for short-term storage and then recycling, and IT did in fact recycle them while the lawsuit was pending. The recycling caused email records to be destroyed. Counsel only came to understand this recycling process later, after counsel claimed there were no tapes containing email. The judge was unhappy. The judge felt that counsel misrepresented the truth about the existence of email on tapes. The judge levied sanctions against the company so as to deal it a severe strategic disadvantage in the lawsuit. (Linnen v. A.H. Robins Co., Inc. , Mass. Superior Ct. No. 97-2307, June 16, 1999, Memo. of Decision and Order).
Today, this kind of miscommunication unfortunately remains common. It prevents enterprises from setting good policy on the retention and destruction of email, even before litigation starts.
This weakness of communication is a key problem addressed in Messaging Architects' ePolicy Workshop. The workshop aims to pull to one table the IT department, the legal department, and other stakeholders in the organization. It helps bridge the gap in communication on records issues, so the organization as a whole can set intelligent policy.
– Benjamin Wright
Benjamin Wright is a strategic advisor to Messaging Architects.
