A number of media outlets have recently reported on "a new law that requires companies to keep all their emails forever". These reports refer to the new Federal Rules of Civil Procedure for eDiscovery, which went into effect on Dec 1, 2006.
- ESI or "electronically stored
information" is now definitively subject to legal discovery (lawyers
can no longer agree to completely ignore electronic content merely
because they are more comfortable with paper documents);
Transparency - at the beginning of every
case, the lawyers now must "meet and confer", including to exchange
information about the "sources" of information from which their client
companies are, and are not, producing information. Essentially, this is
requiring companies to throw open the doors of their IT departments to
the lawyers, who will inevitably seek to discover company information
from many "sources", and who may attack the way companies manage,
preserve and destroy their information. (Additionally, information now
has to be produced in a "reasonably usable" format, likely leading to
more productions in native file formats.)
- Preservationthe concept of "litigation
hold" or preservation of relevant information is not new, but it is now
officially required in every federal case. This means that every time a
company is placed on notice of a new case, the company must identify
the information that is potentially relevant to that case, and preserve
it for subsequent production to the other side in the case. For
example, if a set of files that normally has a 1 year retention period
is potentially relevant to the "Smith v. ABC Corp" case, those files
must be retained by ABC Corp not just for 1 year, but for the life of
the Smith case. Most enterprise customers have dozens or hundreds of
cases at any given time, and without good tools to find and preserve
what's relevant, they may end up "saving everything" for fear of
destroying the wrong things. This will lead some to retain more
information for longer periods. For many, saving everything will be too
painful, and this creates a strong incentive to implement proactive
processes and policy management of information.
Since every company that does business in the US
is subject to litigation risk, the impact of these new rules is
widespread and significant. In sum, eDiscovery increases the costs and
risks of (i) failing to implement policy management of information
(including so that it can be defensibly disposed of when it no longer
has value), and (ii) failing to implement a repeatable and
cross-functional business process for eDiscovery.
