* Paying now for protective software vs. paying the penalty when your company gets hit with a subpoena
Concerns about legal discovery fuel a lot of IT spending these days. The theory behind this is that if we spend a bit now, we can save a whole lot down the road when the litigators start to line up outside the main doors of the corporate office. As an old TV commercial used to tell us, “you can pay me now, or you can pay me later…”
Is this approach justified by the facts? You be the judge. Let’s assume your company now keeps most of its information electronically.
Question 1: Given your department’s present search capabilities, how long would it take your company to identify a specific record? What about a more generalized search, one that retrieves all corporate information using the words “Alpha Project” and “Bob Smith”?
When a subpoena lands on your firm’s doorstep, it is in your company’s best interest – and hence, it becomes your job – to identify all relevant documents (e-mails with attachments, plus all other structured and nonstructured data) as quickly as possible. By so doing, you get your company lawyers up to speed on the facts right away and provide your legal team with the best chance for defending your side of the suit.
Speedy retrieval becomes mandatory, but can the operation be speedy and economical? Probably not, given that the ground rules (as stated in the new Federal Rules of Civil Procedure – which go live in December) now make it clear that all electronically stored information is fair game, and that we are responsible for data “stored on any medium.”
Question 2: Just how much would that search cost?
If you are like most managers I speak with, you have no idea how to answer this one, but it is fair to assume that finding information in electronically stored documents will be a labor-intensive, time consuming, and costly process. If data is distributed across multiple data centers, or if some of it perhaps resides in desktop or laptop .PST files, the situation of course worsens.
Costs involved in such searches likely aggregate along the following lines:
* IT time spent managing applications to make sure that the files can be searched in the first place.
* Time spent by IT admins and staff to locate the necessary messages and files as part of the e-discovery procedure.
* Attorney costs – depending on your legal team, it is probably reasonable to figure this at $200 to $700 per hour.
This likely adds up to be a significant piece of change.
Doing this by hand is, I suppose, theoretically possible, but can hardly be thought of as being practical. The cataloging and classifying (including indexing and tagging the data, and applying policies) that enables a well-planned and efficient response, and the searching and reporting that occur after the subpoena, are just too complex a set of procedures and actions for any mix of staff members to handle on their own.
Putting together the need for timely response, the complexities underlying the e-discovery process, and making even the broadest guess about the expense involved in providing documentation quickly (or worse, the expense in not doing so), it is hard to imagine how an investment in some protective software would not provide significant value.
You can pay them now, or you can pay a much bigger penalty later.
