Is Your E-Discovery Strategy Modeled After Ostrich Behavior?

In preparing for an upcoming edition of my Weekly Ethics Thought on electronic records and communications essentials, I talked with several executives about their e-discovery strategies, policies, and procedures. While I wasn't surprised to hear that they are getting ever-changing and often-contradictory information about how best to develop relevant and appropriate policies and procedures, I was surprised to hear how many of them have no clear strategy at all simply because they felt that the case law hasn't yet clarified enough of the relevant issues. This strikes me as extremely dangerous. As always, sticking one's head in the sand is neither legally nor ethically defensible.

At the absolute very least, even the experts who are at war on everything else seem to agree on some essential basics so those can be a starting point for any set of policies and procedures:

• If you wouldn't write it, sign it, or initial it on paper, don't write, sign, or initial it electronically. Even though it's true that case law continues to emerge in this area, the trend clearly points the way towards all electronic communications carrying the same responsibilities as hard copies have.

• If you wouldn't throw out a paper version, don't delete the electronic version.

• Assure that electronic communications can be safely stored for as long as required by current mandates and good judgment, the latter sometimes supporting the case for longer retention than the former. 

• Develop systems allowing both easy and effective searches of your electronic data so that accurate and complete data can be located quickly, confidently, and securely.

• Makes sure that everyone with access to electronic communications is fully trained in your policies and procedures pertaining to those communications. (I know that probably sounds obvious but, as is true with so many other kinds of training, many companies seemingly arbitrarily decide who will get essential training and who won't...)

Will your policies and procedures need to change as ethical and legal mandates become more clear? No doubt, just as they will need to continue to evolve as electronic communication and related technologies continue to evolve. If your company is waiting for either one of those to slow down before developing a strategy, though, you'll never have one - and that spells all kinds of trouble down the line.