The eDiscovery Dilemma
In the current legal discovery landscape where email has become the predominant form of evidence, more and more organizations are finding themselves in the unenviable position of having to provide email records in support of litigation. Regardless of the merits of the case (or lack thereof), rather than go to trial, many of these organizations opt to settle out of court because of the potential cost of eDiscovery or lack of available evidence.
Legal precedence has shown that the courts favor the side that can produce the most credible evidence, and penalize the side that provides incomplete records or consciously and prematurely destroys records. This provides a legal dilemma: In order to properly defend your organization, you must maintain comprehensive records; but, more records bring higher processing and legal costs to locate, process, and examine those records.
Keeping comprehensive records isn't the real issue though. The issue is the management of those records and the pervasiveness of email as a record. Once you're forced into an eDiscovery exercise, you start to see that gathering email evidence isn't as easy as it should be. The reality is that email records are pervasive and can exist in many locations, many formats, and many copies. A typical organization at any one time maintains multiple email record copies between their backup systems and their online systems.
While duplication may exist, so may disparateness where records exist on one media but not another. It is this potential for information or record existence that prompts court-ordered discovery of all media sources to ensure that all records are provided as part of the evidentiary process. The problem of multiple information sources is not simply related to backups, other business productivity processes factor in, too. Perhaps one of the biggest problems is that of end users circumnavigating message management policies and implementing their own retention processes. This can result in remote copies of messages on local and home workstations, personal archives, mobile devices, printed copies, and external email systems.
With the myriad locations that email can exist within organizations and the inability of organizations to properly control or inventory those locations, it is no wonder that projected costs for eDiscovery in 2009 are estimated at more than $10 billion.
In this electronic information battlefield, organizations have to be able to defend themselves by being prepared for electronic data requests but also need to be able to provide specific records. By knowing what information they possess and where that information resides, the organization can respond quickly, efficiently, and economically to information requests.
In my next post, I'll follow up with a strategy that reduces the complexity of eDiscovery. This essentially turns a technical issue — that for many organizations is an obstacle — into an advantage.
– Greg Smith
