MAC 2008 Electronic Document Discovery

These are my notes from the above session at the Midwest Archives Conference in Louisville, KY this week. Most of it is a repetition of the same things I've heard before, but still important.

Robert Webb - attorney perspective
Paul Engel - vendor perspective
Jim Cundy - records manager perspective

Webb
Electronic records are most important and hardest to manage, especially email because of the number of copies on different networks and servers.

The institution holding records does have the right to push back against requests that would cause undue burden or cost.

Every records manager should sit down with IT and legal departments to see if the mechanisms are in place to freeze routine destruction of electronic records in the event of litigation. The freezing of destruction can be narrowed down by scope and time period.

ESI is Electronically Stored Information

It is helpful to work with IT and prepare a data map tracking the flow of data in, out and through the system.

In the event of a request for records you should keep a record of the efforts made to locate requested records.

Cundy
ESI is addressed early in the legal process and included any record in any location. ESI includes: email and attachments, documents, audio (voice mail), video (teleconferences, webcam), photos from any source, databases, web pages, chat, IM, text messaging, and any other new format that may come up.

It isn't enough to have a retention schedule. Implement it and check up on offices to make sure they are following procedures.

File management is more important for electronic records than for paper, because it is so easy to make duplicates.

Communicate with IT and legal and educate management about value of records management. Work with people outside records management to gain an understanding of other aspects of electronic records.

Engel
Media does not determine importance of record.

The average ediscovery event costs $1.5M and usually targets email.

Be aware of compression issues, compressed files greatly increase cost of discovery.

petrification - changing the electronic document to an unalterable image

Key issues are:
spoliation - changing metadata by improper handling
significant resources
Must know outcome of litigation support software before use to protect metadata