YourABA July 2011 Masthead

Are you prepared for today’s e-discovery requirements?

In the past 18 months, the courts have begun to mandate discovery of data once thought too burdensome to access, reports Jim McGann of Index Engines, a provider of enterprise discovery software and services.

In his recent ABA Technology eReport article, “Today’s e-Discovery Requirements: Are You—and Your Clients—Prepared?” McGann shares particular changes at the state level, citing California’s e-Discovery Act that was signed into law in 2009. “This act requires disaster recovery data, a.k.a. backup tapes, to be treated as a standard source of search and discovery efforts.”

Also significant, this past year Judge Shira Scheindlin of the U.S. District Court, Southern District of New York, put forth in Pension Committee v. Banc of America Securities that companies must “preserve backup tapes when they are the sole source of relevant information or when they relate to key players, if the relevant information maintained by those players is not obtainable from readily accessible sources.”

While the volume of unmanaged data can be intimidating, McGann reports that new technologies have improved access to legacy data.

Despite recent legislation and judges becoming more educated than before on e-discovery best practices, McGann says that the volume of unmanaged data on corporate servers is still significant. He urges counsel and their clients to become proactively involved with their IT departments in developing electronically stored information policies as well as improving their company’s litigation readiness.

While the volume of unmanaged data can be intimidating, McGann reports that new technologies have improved access to legacy data. “Search tools have become more sophisticated. They can now easily integrate into corporate repositories of stored data, like disc storage and backup tapes, and turn piles of unknown records into discoverable records.”

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In addition to becoming more robust, McGann says that e-discovery technologies are more affordable than ever, and are even available through low-cost Internet subscriptions and software-as-a-service models.

Emphasizing the importance of a proactive strategy, McGann recommends that companies first understand what information exists and where it is stored. Then they should deploy the relevant e-discovery technologies across their data environments to be able to produce the information if required.

“The recent laws, opinions and articles [on e-discovery requirements] should be a sign of things to come, and taking a proactive step now will avoid expensive and painful ESI collection fire drills in the future,” concludes McGann.

ABA Technology eReport is a publication of the General Practice, Solo & Small Firm Division.

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