Feds Get Tough on E-Discovery

Recent changes to the Federal Rules of Civil Procedures in 2006 have put IT and internal audit departments under the microscope. According to the new rules, parties to civil litigation must disclose upon request “any documents or electronically stored information in any medium from which information can be obtained either directly or after translation into a reasonably usable form.”

Discoverable information now includes virtually all digital media including e-mail messages and message archives, digital audio recordings, digital images, USB flash drives, laptops, personal digital assistants, cell phones, temporary storage caches, personal audio players, and more. If you can think of a technology that creates, presents, alters, or stores your organization’s data, it’s probably discoverable because the Federal guidance casts a wide net.

The new rules can be devastating to organizations that do not have sound policies for the capture, retention, and disposal of electronically stored information. The inability of an organization to properly account its information can result in penalties ranging from loss of the right of document privilege (i.e. the right to protect privileged documents from discovery) to adverse inference rulings (i.e. undiscoverable information is presumed to have been adverse) and, in some cases, obstruction of justice charges.

In a November 10, 2007 article in the Institute of Internal Auditors e-magazine IT Audit, Shawna Scharf, contributing staff writer, discusses what the new rules mean for organizations. “By studying e-discovery law, recommending the implementation of sound data retention policies, investing in the right software tools, and working with the company’s legal counsel, auditors can reduce the risk of coming up empty handed in the e-discovery process.” Makes you want to review your document management policies, doesn’t it? You do have document management policies, don't you?

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