IT legally responsible for electronically stored information

IT expected to play an integral part in the legal defense process in terms of taking responsibility for all electronically stored information

Developments of the week in storage

The column comes to you from the “Read it and Weep” collection.

Last Spring, brokerage firm Morgan Stanley said in court that problems in recovering e-mail evidence for a trial had resulted from human error and “other technical issues” having to do with the discovery process, and that it had not purposely hidden electronic evidence from the plaintiff suing them. Their opponents in the case felt differently, telling the judge that Morgan Stanley had purposely violated court orders by not turning over evidence that it requested, putting their case at a legal disadvantage.

The jury felt this “lapse” in technical expertise – whatever the reason – was no excuse, and socked the company with $850 million in punitive damages over and above the $600 million in compensatory damages already awarded.

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The column comes to you from the “Read it and Weep” collection.

Last Spring, brokerage firm Morgan Stanley said in court that problems in recovering e-mail evidence for a trial had resulted from human error and “other technical issues” having to do with the discovery process, and that it had not purposely hidden electronic evidence from the plaintiff suing them. Their opponents in the case felt differently, telling the judge that Morgan Stanley had purposely violated court orders by not turning over evidence that it requested, putting their case at a legal disadvantage.

The jury felt this “lapse” in technical expertise – whatever the reason – was no excuse, and socked the company with $850 million in punitive damages over and above the $600 million in compensatory damages already awarded.

These numbers are pretty big, even when compared to IT budgets, but the fact that such sums soar beyond anything your company will ever hope to make doesn’t let your IT team off the hook. When last summer I wrote my first warning about the new Federal Rules of Civil procedure, the responses from several readers indicated they were bummed but resigned – “if it happens… it happens, and there’s nothing we can do about it.”

Sorry folks, but it’s unlikely that attitude will hold up – not in court, and not with your legal department, which from this month onwards is likely to see IT as playing an integral part in the legal defense process, a part that has and must take responsibility for all electronically stored information. IT management, it seems, must be accountants during some hours - doing ROI and TCO analysis to justify purchasing - and a lawyer during some of whatever time is left.

And you thought it was all about the technology.

The key issues for IT managers appear to be the following: first, IT managers must be prepared to produce, organize and label all documents are kept in the usual course of business; second, be prepared to produce the information in a form or forms in which it is ordinarily maintained, or in a form or forms that are reasonably usable. A third point represents some good news - electronically stored information need only be produced in one form.

A fourth point should also be taken under consideration – my parents’ best efforts notwithstanding, I am not a lawyer. If you haven’t done so already, speak to yours.

Next time, once again we dash off a letter to Santa, based mostly on your complaints and insights over the past year. Stay tuned.

Read more about data center in Network World's Data Center section.

Deni Connor is principal analyst for Storage Strategies NOW and host of both the Masters of Storage and Masters of Servers Solution Centers.