Post Process

Everything to do with E-discovery & ESI

Managing ESI. Or not.

Posted by rjbiii on September 5, 2007

We recently posted an article pondering whether corporations’ attempts to limit the use of email would become a trend. In that post, we also noted that corporate policies and legal processes designed to manage data were fighting an uphill battle:

The dichotomy is quite amazing. IT is moving rapidly toward more distributed and disparate types of data sources. Trends like tele-commuting, the greater us of PDA’s, black boxes in cars, etc. At the same time, corporate policies and the legal world are trying to better manage these data sources for purposes of litigation readiness and limiting exposure to legal liability. The struggle continues.

We just now stumbled on an article illustrating just how difficult a task it is to manage an ever increasing volume of data. From Metro Corp Counsel, Jerry Barbanel and Thomas Avery of Aon Consulting note that use of emails is growing at a 30% rate. [HT: EDD Blog Online] From the article:

The greatest cost factor for companies involved in large-scale litigation or governmental matters is the increasing cost of electronic discovery. Electronic discovery costs have been rising at double-digit rates, with no end in sight. The most significant factor that contributes to electronic discovery costs relates to the enormity of e-mails that have to be collected, processed, hosted, reviewed and produced. With the amount of e-mails created by a company growing at a rate of 30% annually, it is critically important for companies to master an understanding of this technology as the potential costs of electronic discovery could prove to be devastating.

The article also sheds light on another fact of life: the increasingly disparate forms which sources of data take, such as PDA’s and external mail clients like Yahoo!. As the job of finding, collecting, filtering and reviewing data becomes more and more difficult, requiring ever more specialized skills, one might think that the legal world would be paying attention. One would be mistaken, however, according to a post on Thinking E-Discovery. While the post focuses on addressing the issue of EDD early in the litigation, and specifically, during depositions, Dennis Kennedy remaks that:

[A]ll the attention [to the new amendments to the FRCP regarding ESI] seems to have limited effect

I must agree, and I am confused about it. I am continually surprised by the lack of knowledge (and urgency) that exists in both the law firm and in-house counsel environments. The further we move away from the new amendments to the civil rules, the less tolerant courts will be of excuses by companies and counsel that they were unprepared to deal with ESI.

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2 Responses to “Managing ESI. Or not.”

  1. smurawski said

    Thank you for the interesting/stimulating conversation on e-discovery as it relates to email. I have referred to a couple of your recent posts on this topic on a podcast I participate in called “A Couple of Admins Podcasting” (acoupleofadmins.com). Not only is this an issue for attorneys, but for the IT personnel that support them. Please keep up the discussion.

    – Steve Murawski

  2. rjbiii said

    Thanks for reading Steve! Your point is well taken, that this greatly affects IT departments, especially those with large enterprises to oversee. In fact, those companies that often need litigation holds should implement policies before disputes ever take place that are designed to lower costs overall.

    We’ll be monitoring your podcasts for more overlapping material.

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