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The interpretation of what constitutes accessibility or burdensome cost varies widely. "One judge told us that it will be four to five years before we start to see consistency and predictability in applying the new rules," says Radke.
CIO meets general counsel
The federal rules, particularly Rule 26(f), require that the parties to litigation meet early in the process to discuss issues regarding discoverable information. Furthermore, the parties, according to Rule 26(a)(1), must provide a description by category and location of all electronically stored information and its accessibility.
If nothing else, these rules will force a company's CIO and general counsel (GC) to meet and talk about ESI, storage systems and storage processes in general and then again whenever specific litigation arises. Radke recalls arranging one such meeting at a Fortune 100 client and then walking away with the distinct feeling that "the CIO and GC had never met before."
IT in the dock
In litigation, an IT person can be called to testify in one of two ways: as an individual with knowledge based on their direct experience or as a representative of the corporation. According to Rule 30(b)(6) of the FRCP, just about anybody (described in the rule as "officers, directors, or managing agents, or other persons") can be required to give a deposition on behalf of the corporation.
In that case, you're expected to represent the total knowledge of the corporation on the issue at hand. "The CIO and CTO have always been called into court to describe how information systems are designed and how the data is stored," says Radke. "Now you can expect to see more of it because of the importance of electronic data. IT people need to be ready." Specifically, IT people will be called on to explain:
- Where, when and how data is stored and accessed
- The safeguards in place to back up or otherwise protect the data
- The structure, format and type of data stored
- The cost of accessing the data
- Policies and procedures related to data storage, access, retention and destruction
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