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Published by Pike & Fischer, Inc., a subsidiary of The Bureau of National Affairs, Inc.
Digital Discovery
& e-Evidence
BEST PRACTICES & EVOLVING LAW
Vol. 2, No. 6 | June 2002
Vendor & Technology News
Keeping Track of Who's Got What
While most courts may still trust lawyers to do the right thing, some glaring holes exist in the digital discovery processes of companies and outside law firms that could raise concerns. Few organizations can withstand heightened scrutiny in the areas of document preservation, data collection, and searching/filtering. Before Enron, the trust bond was already eroding due to an astounding level of sloppiness or worse in many organizations' digital discovery processes. This is compounded by an ever-widening gap between the reality of the immediate threat and senior practitioners' awareness of the problem. Simply put, today, corporations face a great risk of being successfully challenged unless they "weave" a trust bond into their "problem case" digital discovery strategy.
Even if you have a digital discovery unit already in place, from the outset of a problem case, insulate the client from any additional damage by carefully documenting the distribution method for notices of judicial preservation orders, electronic record holds, or whatever way such information is collected. Hold employees accountable for providing detailed information about their digital archives. An individual's mistake can quickly be superimposed on an entire company. On a problem case, it is helpful to record what employees tell you about their archive. Often, individuals may hope to defer discussion of uncomfortable topics or hope that by providing less than complete information, the issue will go away. Make sure that you can track specific answers back to individuals in the event that an individual's documents become the focus of discovery or of an investigation or regulatory matter.
The following sample checklist can be a starting point.:
Michael Prounis is Chief Executive Officer and co-founder
of Evidence Exchange, a New York-based electronic data discovery solutions
provider. He can be reached at michael.prounis@evidenceexchange.com.
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