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No single solution fits all
There isn't a single solution that addresses the unique requirements of every firm because each company's needs and regulatory situations are unique. However, the first requirement for success in any corporation is to build a strong relationship between the processes of IT and the needs of legal counsel. With the revised FRCP, this best practice has become compulsory for most companies. IT and legal need to speak each other's language so that characterizations of the processes under which records are retained electronically, their locations and how to access them are understood.
"For organizations, the big change imposed by the amendments to the FRCP is its requirement of early meet-and-confers on ESI," says Jon Neiditz, attorney and risk management expert in the Atlanta offices of Lord Bissell & Brook LLP. "For organizations, this means either you have to be ready with this information or risk outsourcing its collection at substantial cost and substantial risk of missing some information store, with potentially disastrous consequences."
Unfortunately, it's rare in any company to have clear ownership of structured and unstructured data. When no single employee has information mapping as the central part of their job, it's doubtful that there's an established retention method or location for select types of records. This costs the company in several ways:
- Time to respond.
- If your lawyers can't make representations based on a solid document-retention process, every case will become a full-blown data discovery exercise. Instead of knowing there are no documents on a particular subject because your policy states they're deleted after three years, you'll have to look in every nook and cranny in the company for documents that may relate to that subject.
- Mistakes. A poorly implemented document- retention policy could cause you to inadvertently mislead the court when responding to a document request. If you don't recover from this, you can be subject to sanctions by the court, which can result in very bad (and expensive) things happening.
- Trustworthiness. If you get the reputation as a company that can't do this well, you run the risk that every case will turn into a big forensic exercise because you'll have squandered the trust of the courts.
This was first published in September 2007