A Comprehensive E-Retention Policy

During litigation, the e-discovery process is initiated when your legal counsel receives a letter asking your company to preserve relevant data. Such a letter, or "litigation hold," requires the recipient to preserve any electronic data that falls within the scope of the notice. For IT, that means disabling any automatic deletion or purging functions on the systems in question, such as an e-mail server or a customer database. If the litigation hold targets specific individuals, then their IT assets, including laptops and removable storage, must be preserved as well. While your lawyer can interpret the litigation hold for IT, she needs something in return: a comprehensive explanation of all IT systems that have a chance of housing information potentially relevant to the dispute.

When developing a policy to deal with a litigation hold, determine which systems--enterprise as well as end-user-specific--should be configured to avoid deleting, purging, or overwriting data. What are the backup schedules for those systems, and when will relevant media be overwritten? How will individuals' systems be preserved, and how will you train these users to avoid changing or destroying metadata?

Failure to comply can have serious consequences, including court sanctions, negative inferences that the judge may order the jury to make regarding critical facts in the case, or a requirement that a particular IT system or source data be revealed completely to your adversary. In Zubulake v. UBS Warburg, the court let the jury assume that missing e-mail contained evidence that UBS discriminated against the plaintiff based on her gender. Five e-discovery rulings in Zubulake formed the basis for the FRCP e-discovery amendments.

Photograph by Superstock

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E-Discovery: New Federal Rules Require A Proactive Strategy