There are two good articles on today that present a good view of the current world of electronic discovery.
In Justices Skeptical of DOJ’s Claims About Andersen Document Retention, Tony Mauro covers the arguments before the U.S. Supreme Court in the case involving Arthur Andersen’s “reminder” of Enron’s document retention policy that it is argued came too close in time to an investigation targeting the company. As you read the excerpts from the arguments, you’ll see that the case case raises difficult questions with potentially far-reaching practical implications. How clear is a standard like “reasonable possibility of an investigation” when you are implementing a document retention policy that involves deletion of documents?
The money quote:
O’Connor too fretted about the impact on small businesses and on lawyers who advise companies. “How is a person supposed to know what to do? How is a lawyer supposed to know?” she asked.
The second artice, E-Discovery and Inevitable Litigation, attempts to answer some of the questions posed by the Arthur Andersen case. For the most part, the authors resist the impulse to scare people with potential horror stories and stick to providing solid advice and recommendations. However, after you read the other article I mentioned, I’m sure that you will be jarred when you read the sentence that begins “The policy needn’t be written . . . .”
My quibbles aside, this article is a handy outline of where we are in electronic discovery today that covers issues from the points of view of both lawyers and clients.
The money quote:
6. Just as inside counsel should learn the basics of information technology, the company’s information technology personnel could benefit from learning the basics of discovery obligations and the consequences of spoliation. As Zubulake V demonstrates, the more that legal personnel and information technology personnel can speak one another’s language, the less likely spoliation is to occur.
7. Educate your company’s regular outside counsel about the company’s document-retention policies and data-retention and storage architecture. It may be beneficial for outside counsel to talk to the company’s information technology personnel directly.
I may want to substitute the word “will” for “may” in that last sentence.
If you deal in any way with electronic discovery or document retention issues, you’ll find it well worth your while to spend a few minutes today reading both of these articles. If your interest in e-discovery is piqued, be sure to check out Merrill’s on-demand seminars on specific e-discovery topics.
[Originally posted on DennisKennedy.Blog (]