Understanding where information is located on corporate systems, where key applications and custodian data resides, how data is stored and retrieved, cost implications, and whether to store data on "accessible" or "inaccessible" media are just some of the key decisions litigators and business lawyers face as they grapple to understand the implications of the FRCP changes and to advise their clients. Unprepared lawyers are nervous, if not downright alarmed.
In large corporations, the changes result in enhanced legal responsibility when it comes to creating, retaining, preserving, destroying, and producing corporate documents. With this enhanced responsibility comes the need to make important decisions, such as:
- Whether and when to destroy documents or preserve them
- Whether to store documents on "accessible" or "inaccessible" electronic media
- How to ensure e-evidence is not spoliated by the timely suspension of automated computer deletion programs after the duty to preserve has begun
For corporate lawyers, these choices are made under the threat of expensive court sanctions for spoliation of evidence if the court disagrees with one's decision. As such, corporate counsel and their IT departments are demanding greater involvement in discovery, at one time the unquestioned domain of the outside litigator. Some corporate lawyers and IT professionals are discovering they can manage the discovery process at least as well, if not better, than their outside counsel, realizing less risk and greater efficiency.
This article reviews the four emerging corporate e-discovery "models" and suggests ways business lawyers can survive and thrive in this changing landscape.