Discovering a mess

Enterprise Strategy Group research estimates that 46% of organizations went through an electronic discovery event in the past 12 months. 77% of those discoveries required organizations to produce e-mail. Amongst all the ImClone, Enron, and [enter your high profile corporate scandal here], we must realize that 1 out of every 2 corporations have to sift through IT systems, messaging applications and back up tapes in response to a regulatory or legal discovery request.

Is it not enough that IT has to manage all the applications and supporting systems that create the data? Now IT must lend in-house attorneys a helping hand when dealing with the latest lawsuit.

The Judicial Conference of the U.S. recently made changes to the Federal Civil Procedures Rules to enable organizations to produce Electronic Stored Information (ESI) in response to a discovery request and allows for the courts to set reasonable limits -- based on cost to the producing party -- on how much ESI can be requested at one time.

I am not an attorney, nor do I care to every be one, but these recent changes are a step in the right direction for IT departments that have been stuck looking for e-mails and files created years ago. In some cases, IT is forced to recreate their Exchange environment, inclusive of application server and its O/S, just to get the data back. However, the new changes in Civil Procedure do not alleviate the need for organizations to manage information more efficiently in order to reduce the time it takes to locate data when a discovery event does occur.

Because many organizations do not have the adequate resources to locate information when a discovery notice arrives, several service providers have designed offerings to assist. E-Vault, a provider of data protection services to the mid market, recently announced E-Vault Insight, an e-discovery service that can help customers retrieve and produce evidence. This service makes a ton of sense as customers that already backup their data with E-Vault can now search that data in the event of a discovery.

In addition to E-Vault, Fortiva also announced that it has added search, discovery and disposition services on top of its Archiving Suite. Customers looking to archive data for compliance purposes can utilize Fortiva services and now can search these archives if a discovery request arrives.

These vendors follow in the footsteps of Zantaz. With its First Discovery portfolio of offerings, Zantaz offers customers the ability to archive data, discovery it, and prepare it for trial using its Introspect litigation support software.

There is no question that organizations face significant challenges when managing information and the aforementioned services can be helpful. Many regulators and litigators target backed up data because most organizations rarely have disposition policies. A smoking gun could easily fester on a backup tape stored somewhere else.

Electronic discovery will no longer be the exception when it comes for attorneys looking for this "smoking gun." Rather, electronic discovery will be the norm forcing IT departments to collaborate with in-house counsel to develop repeatable processes so that both groups are not constantly point fingers and disheveled every time a discovery notice arrives. If these processes cannot be reasonably deployed in-house, organization should evaluate electronic discovery service offerings because ignoring the issue due to a lack of resources will not make the problem go away.

I recently talked with a couple of guys representing the IT staff of a large bank. These guys were part of 100+ person team that ran the bank's electronic discovery operations. That's right, 100 people responsible for electronic discovery, and a group that has its own IT department. Unfortunately, this is what it comes down to. For every big name case, there are several other lawsuits that consume several corporate resources for extended periods of time. I think that these two guys could start their own reality TV show. Who wouldn't want to see attorneys and IT staff look for an e-mail on an LTO system from 5 years ago?