The New Discovery Process

Dec 07 2006

By Kurt Seifried (kurt@seifried.org)

Like “New Coke” America now has a new “Discovery Process” for lawsuits, and much like the new Coke it isn’t going to be very popular at first.

Unlike new Coke it’s going to last longer then a few months….

On Dec 1, 2006 a new set of rules came into effect, the gist of which is that electronic messages such as email and instant messages should be treated the same as paper documents when it comes to legal discovery. This means that the electronic messages need to be archived in much the same way as paper records such as memos and internal reports.

I can only imagine the cries of joy and subsequent parties at companies that make backup tapes.

You can no longer simply rotate backup tapes for email and file servers, overwriting existing tapes would be tantamount to shredding evidence in some situations. Of course this behavior won’t be a problem until you are involved in litigation, at which point it is far to late to fix things.

But at least with email you typically have control over the server and can create a backup of email and archive it at the server level, covering all users at once.

With instant messaging things become a whole lot more complicated. If a company uses an internal messaging service, depending on the product they may or may not be able to archive messages at the server level. With popular instant messaging clients such as Microsoft Messenger you do not have control of the server, removing this option. Some clients, like Microsoft Messenger allow clients to archive messages locally on the client. Unfortunately this now means you have to backup every single workstation on the network that uses such a client, and ensure that user’s can’t delete the log files accidentally (or intentionally).

All in all quite mess. Much like new Coke.

New E-Discovery Rules Benefit Some Firms

Rule 16. Pretrial Conferences; Scheduling; Management

NEW ELECTRONIC DISCOVERY RULES ARE COMING

It’s Dec. 1: Do you know where your metadata is?

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