The joke goes something like this:
A guy goes by in a balloon and yells down to a man on the
ground, "Where am I?" The man on the ground says, "You're in a
balloon, 30 feet above the ground, headed from this direction to
that." "You must be a lawyer," says the guy in the balloon. "You've
given me information that is technically accurate and terribly
useless and I'm in no better situation than I was when I came to
you with a problem." The lawyer says: "And you must be an
executive. I've given you accurate information, and now it's all my
fault!"
Miscommunication is actually no laughing matter for CIOs or their
companies, said attorney Erik Phelps, a featured speaker at the
recent Fusion 2007 conference in the US. The revision of the
Federal Rules of Civil Procedure, which mandate the accountability
of electronically stored information in lawsuits, means CIOs and
lawyers need to start speaking the same language.
"Can you get sued? The answer is always yes," said Phelps, a
partner at Michael Best & Friedrich LLP and former general
counsel for catalog and online retailer Lands' End.
The stakes are "immensely high," Phelps said. Cases are decided
on facts. Facts live in documents, in emails, on BlackBerrys,
throughout the electronic archive. A well-informed attorney who
goes into a case with a good handle on his company's information
assets has an enormous strategic advantage over the other side.
Treat e-discovery like disaster recovery</[P>
Think broadly about existing data stores, Phelps advised. That
includes everything from typical spreadsheet documents to less
obvious repositories, such as USB flash drives, instant messaging,
Web server logs and home computers. Every one of these data stores
has been the subject of a subpoena and a mandatory obligation to
produce the information in a lawsuit under US law.
CIOs need to review and document their various data stores, with
attention paid to the policies applicable to them. Where is the
data kept, how long, how much, does it need to be kept for
everyone, is it backed up, does it involve automatic destruction
and who has access, etc. More important, who owns the data -- a
detail that is often overlooked.
"That is the person the lawyer has to go to and say, 'Stop, this
all has to be preserved!'" Phelps said. When litigation takes
place, the company has to stop the automatic deletion of certain
information. It might be email or particular databases. CIOs should
know how to stop the deletion if the data is put on litigation
hold, and then ask themselves whether they could do that
"tomorrow."
"You will be of tremendous value to your organization and your
organization's risk profile if you think about these issues now,"
Phelps said.
Indeed, Phelps recommended CIOs treat e-discovery like disaster
recovery and do periodic run-throughs to make sure data is
accessible. Ask the lawyers which claims their company is most
likely to get smacked with and figure out how to execute the data
requests in an "orderly fashion."
"Get used to working with discovery vendors and your outside
litigation counsel -- and don't change, or you go through the same
learning curve over and over again," he said.
Reasonably accessible, according to lawyers
Ed Meachen, CIO for the University of Wisconsin System, said his
group is embroiled in a "very major litigation hold," with no sense
yet whether the case will turn into litigation. Potential costs
could mount to tens of thousands of dollars not built into the IT
budget. What to do?
Exercise judgment, Phelps said. Under US federal rules,
organisations are obligated to reproduce reasonably accessible
information. "Now unfortunately, lawyers drafted the rule and
interpret it, so I can't give you a clear answer that this data
server is reasonably accessible and that one is not," he said.
But this is one of the areas where good communication between
the CIO and legal counsel is critical. If it's decided some of the
requested information is not reasonably accessible, the burden
falls to the other party to prove why they need it and "there are
potential cost shifting implications," Phelps said.
He's worked on cases where backup tape exists, but the system to
reproduce it no longer exists. "The plaintiff's answer is great,
'Go find a new system," Phelps said, but the rules are a "little
bit more rational."
However, if the data is living on an active system, fights over
whether it is reasonably accessible "will happen," he stressed. In
fact, 10% or even 25% of the CIOs who were in the room at his
Fusion 2007 talk will be deposed on this very issue in the next
three years, he said, and may end up being called into court.
"We stand in open court all the time and say, the CIO says
absolutely, this can't be restored, it will cost hundreds of
thousands of dollars. 'Really?' the judge says. 'Bring her in,'"
Phelps recounted. "The CIO is put on the stand, raises her right
hand. 'Could she reproduce the data if her business told her to?'
'Yeah, I guess I could.'" So much for absolutely not
accessible.
One bright note: The rules allow parties to agree that
electronically stored information is not relevant to this lawsuit.
Courts may well honour it, Phelps said -- "and now you don't have
to produce anything," But, he cautioned, you have to think about
this issue early, or you are going to get stuck with what the judge
orders.
Let us know what you think about the story; email:
Linda Tucci, Senior News
Writer