New e-Discovery rules: A CIO's nightmare?

Summary:New e-Discovery rules being developed for the Federal Court of Australia will require CIOs to take a more active role in their organisations' legal affairs.

New e-Discovery rules being developed for the Federal Court of Australia will require CIOs to take a more active role in their organisations' legal affairs.

The Federal Court is expected to release a new practice note in December 2007, which will dictate how the legal community should approach electronic discovery in matters before the court.

Discovery is the process by which parties in litigation request documents from each other prior to trial, relating to the facts in dispute. Squabbles over discovery are blamed for the exhausting length of court cases, including the recent C7 "mega-litigation".

Once introduced, the practice note will encourage electronic documents to be produced in their original electronic form, rather than be converted -- i.e. printed -- on paper. It will also dictate that admissible electronic evidence be submitted in a form that is electronically searchable.

The note will also ask the parties involved to engage in a "pre-discovery conference" -- in which they will need to agree on a checklist of items regarding the electronic documents they seek from each other to use in the trial.

Inevitably, CIOs and other IT staff will find themselves needing to assist their legal teams in preparing for, if not attending, such meetings.

Scott Mann, national lead for Dimension Data's incident management and response team, said CIOs will need to build a strong relationship with the legal representatives of their organisation.

"Mediation between technology specialists will definitely aid the judicial process," he said.

"Legal is going to be asking what you can do technically to meet any proposed court requirement. While it is the legal department's issue, questions will be asked of the CIO if you can't accurately provide the business with where information is on your network or how to capture it."

Worse still, Mann said, if CIOs can't prove they have the capability to produce the relevant information sought in e-Discovery, a third party may be brought in to find it -- causing significant disruption to the business.

Creating a "litigation-ready" IT shop
Seamus Byrne, director of forensic technology at Vincents Chartered Accountants and a member of the court's working party on e-Discovery, says the practice note will encourage companies to become "litigation ready".

That means taking proactive steps and having more control over where and how their electronically stored information is managed, how their integrity can be guaranteed, and how electronically stored information can be collected and searched with minimal disruption to the business.

The growing trend towards e-Discovery will motivate many organisations to develop policies and procedure around document retention.

"Many organisations may have implemented document retention and destruction policies in relation to hard copy documents, yet have not given appropriate consideration to electronic documents," Byrne said.

Byrne said the law is playing "a more pertinent role in corporate IT".

"There is increasing pressure from the law and the courts regarding the management of electronic documents as potential evidence. IT is unwillingly caught in the middle -- they have to balance IT at an operational level, while acting in a way that ensures the company is compliant with the rules and regulations which may be applicable."

Mann said organisations should be conducting their own pre-emptive audits to ensure their own "internal compliance".

In the very least, he said, organisations should be looking to classify their data -- storing high-risk data in a format for which its integrity can be assured.

"You need to understand the threats and risks around data, and what data is likely to be a target for e-Discovery," he said. "You then need to understand the storage and archiving that data needs."

Topics: Legal, Data Management, Enterprise Software, Hardware, Storage

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