E-Discovery
There’s significant change ahead in the legal field, and we at Symagio have been busy advising our clients and colleagues about what it means for them and their business. The word we’ve been using most frequently is “e-discovery”, which is becoming yet another reason (as if you needed anymore) to backup your data with a trusted managed backup provider. The phrase e-discovery, though, elicits a blank stare from all but our most legal-savvy friends.
We recently came across a great article by United States Magistrate Judge Ronald Hedges about e-discovery, and it offers the most comprehensive analysis of the issues we’ve come across yet. The article, Discovery of Digital Information, has proven to be quite a fascinating read. (And yes, to preemptively answer your question, we really DO find it interesting!). Judge Hedges quotes freely from the Sedona Conferences, which in their January, 2004 publication Best Practices, Recommendations & Principles for Addressing Electronic Document Discovery, define e-discovery as follows:
Electronic discovery refers to the discovery of electronic documents and data. Electronic documents include e-mail, web pages, word processing files, computer databases, and virtually anything that is stored on a computer. Technically, documents and data are ‘electronic’ if they exist in a medium that can only be read through the use of computers. Such media includes cache memory, magnetic disks, optical disks and magnetic tapes. Electronic discovery is often distinguished from ‘paper discovery,’ which refers to the discovery of writings on paper that can be read without the aid of some devices.
Alright, our clients say, we still don’t understand half of that. Unless they’ve been unfortunate enough to have first hand experience with civil litigation, or have practiced law themselves, most of our clients aren’t familiar with paper discovery, much less this whole new breed of e-discovery. After much searching, we’ve found the most comprehensive yet sensible definition of discovery comes from one of our favorite websites, Wikipedia:
In law, discovery is the pre-trial phase in a lawsuit in which each party through the law of civil procedure can request documents and other evidence from other parties or can compel the production of evidence by using a subpoena or through other discovery devices, such as requests for production and depositions.
What does this mean for you and your business? First, you should ask your lawyer, as this certainly isn’t legal advice. But a simple game of connect the dots reveals that more and more of your information, including emails, databases, and Word documents, are now subject to the jurisdiction of a court. To make a long story short - blaming your backup tapes for lost information in litigation just isn’t going to work anymore. Just ask Morgan Stanley. We’ll write more in the next entry on why this means a fully managed backup plan is a crucial element to address this growing problem.