Corporate attitudes and spending on the management of electronically stored information (ESI) for legal and regulatory matters are changing. This change in attitude is propelled in part by regulatory changes and judicial interpretations related to ESI in litigation in the UK and US. High-profile cases such as Enron and Worldcom are influencing senior executives because of costly fines and the negative impact on shareholder value related to the failure to properly comply with a duty to preserve ESI.
The process of managing ESI for legal and regulatory matters is referred to as e-discovery. There was an increase in the use of e-discovery systems in 2007 by UK companies, growing from 8% in 2006 to 71% in 2007 according to a recent study. The study also reported that regulatory matters topped the list of litigation in the past year in the UK and were the area of most concern to corporate counsel (53%). Securities litigation was the second greatest concern to UK companies and the second most common type of legal matter.
The US eDiscovery Amendments to the Federal Rules of Civil Procedure (FRCP), effective December 2006, put a focus on an organisation's ability to demonstrate proactive, routine and good-faith management of ESI in the face of discovery, particularly as European companies operating in the US are subject to the same regulations as their US counterparts. This is having an impact on how UK enterprises manage information in relation to their risks and liabilities. Organisations now have to think about their data in terms of the evidence they hold in addition to its business value.
Sorting through the huge and growing amount of ESI that most organisations possess is not easy, and the limitations of legacy technologies and isolated e-discovery tools are increasingly being exposed. In the next 12 months, we will see UK companies falling prey to legislation if they cannot uncover all ESI potentially relevant to a legal or regulatory matter within a specified timeframe. A US judge has already stated the importance of producing data that is conceptually and contextually important to a case. ESI could soon become the Achilles' heel for organisations that fail to confront this now.
Regulators and courts expect organisations to preserve, search and retrieve information from all potentially relevant sources using modern methods, such as keyword and conceptual analytics. Technology that can discover potentially relevant information and automate what has traditionally been a laborious process promotes best practices and protects organisations from risk. UK companies are already recognising this need and are looking at new approaches for proactive information risk management.
By Deborah Baron, director, Electronic Discovery Zantaz, an Autonomy Company
This was first published in March 2008