http://snipurl.com/coy6r

Stories of this type crop up rather regularly these days, ones involving
e-discovery actions having to sift through "...mountains of digital
information piling up on hard drives and backup tapes..." with claims of
"...how thorny electronic evidence searches can be..."   And like most cases
of this type, this one revolves around e-mail.

The ironic thing here is this case involves a firm whose primary business is
scouring the information of others for evidence and their inability to find
evidence in their own mountains.

And the thing that never ceases to amaze me is the ever present claim that
"...the rules distinguish between "reasonably accessible" files and ones
that are too expensive to tackle..." even though the organization has made a
conscious decision as a matter of procedure and practice to maintain this
volume of information.

What are they planning to do with it themselves, if not sift through it to
find something they may need some day?  And if they think it's worth
keepiong it around, and they would have to expend serious chunks of change
to go through it to find what they're looking for, then how can a statement
be made like "...Backup tapes often count as overly burdensome..."

Ultimately in this case, the plaintiff was awarded $300k, mainly because the
firm could not disprove the claims being made, but this one might not be
over, as the attorney is now looking at pursuing further actions against the
firm for attempting "...to thwart e-discovery."

What cases like this point out is the disconnect between the Federal rules
(Under federal rules, all electronically stored information is potentially
discoverable) and the charges that if it is overly burdensome or costly,
then they can be excused form searching and or potentially producing it.  If
they have as a standard practice to maintain the information, supposedly to
support business needs, then it should be discoverable, regardless of the
cost to search and produce.

This is why many in records management strongly suggest applying the basic
principles and practices RM is built around to retain ONLY that information
that satisfies the definition of a record, and to retain it only for as long
as it has legal, regulatory, statutory or business value.  The concept of
"save everything because it's less expensive" or the fallacy that it allows
an organization "to be in compliance" by doing so needs to be regularly
challenged, ESPECIALLY in the case of e-mail. 

Bottom lines?  Well, for one, anyone reading this story who was considering
hiring the firm to do what it does for them will likely think twice when
they proved beyond a doubt they couldn't do it for themselves.  For another?
 This should serve as a great example to raise in your own organization as
to the expense and potential damage that can occur from retaining
information that serves no business purpose longer than necessary.

Larry
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