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New rules, new game for compliance and ediscovery

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Key ediscovery terms

Adverse inference: The judge instructs the jury to infer that destroyed evidence would have been harmful to the party responsible for the destruction. This can frequently result in the sanctioned party losing the case. You can lose the case simply by losing data, not on the merits of the case.

Custodian: A person who has documents.

Document request: This is the basic tool used to take documentary discovery. Basically, the other side gives you a list of the documents they want to examine. To the extent that they're relevant and not privileged, you'll generally have to give these documents to the requesting side.

Document retention: This term covers the process of maintaining and destroying documents according to retention periods that were assigned based on the document content.

Litigation: This generally covers not only lawsuits, but government or internal investigations and other related compliance efforts. When a company gets sued or sues someone, or receives a subpoena or other official request for documents, there's an obligation to preserve and produce responsive documents.

Litigation hold: When litigation becomes reasonably foreseeable, the company must preserve all relevant data. A litigation hold is imposed

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on relevant information to prevent its deletion. Violation of this duty to preserve can result in a claim of spoliation and, ultimately, loss of the case.

Privilege: Protects a document from discovery or being used as evidence. The most common form of privilege is that of attorney-client communications. This can be a tricky subject, so you should discuss any potential privilege issues with counsel as soon as possible in the process.

Sanction: Penalties imposed by the courts or the governing body, such as the Securities and Exchange Commission.

Spoliation: Deleting, destroying or withholding material relevant to a legal proceeding. Sometimes auto-delete policies can cause records to be destroyed without any affirmative action on your part. Spoliation can be subject to criminal sanctions or an adverse inference.

Rank-and-file IT people are often asked to educate the CIO or some technically clueless VP required to be deposed under Rule 30(b)(6) on behalf of the corporation. In that case, you'll have to bring the person up to speed fast because lawyers report that the initial meeting in which the discoverable data is scoped out usually takes place about a month after notice of litigation has been received. "The goal is to have this meeting as early as possible," says Lederer at the Center for Legal and Court Technology.

This was first published in September 2007

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