ABA Banking Journal - June 2007 - (Page 44)
COMPLIANCE REPORT When lawyers want the needle in your haystack. Or the whole haystack WARNING: The contents of this article may make you paranoid about sending e-mails for the rest of your life “A company with 100 employees sending or receiving the industry average 25 e-mail messages a day produces 625,000 e-mail messages a year, generally unorganized and full of potentially embarrassing or inappropriate comments. … ‘Deleted’ data is not really deleted at all The possibility that a deleted file can be restored or retrieved presents a temptation to engage in electronic discovery on a much broader scale than is usually contemplated in conventional paper discovery.” —from introduction to Guidelines For State Courts Regarding Discovery of Electronically Stored Information, from the Conference of Chief Justices, for guidance to state court systems (www.ncsconline.org) T he “poof” has gone out of much of American business. What’s “poof”? “Poof” represents the disappearance of all visible traces of communications between boss and employee, banker and customer, colleague and colleague, and more. Once upon a time, much communication relied on human memory—fallible, faulty, forgiving human memory—for recall. Increasingly, “poof” has gone “poof.” Think of your own workday. How many matters that you once settled by a simple walk down the hall for a ten-minute conversation get handled by six e-mails back and forth? How many heated phone calls that would occur, and then be smoothed over, get formalized for posterity in e-mail exchanges stored in at least two companies’ systems? Paper notes can be tossed; e-mail lives on. “E-mail has become today’s default communication,” says Brenda Sharton, partner, litigation, in the Boston office of Goodwin Procter L.L.P. By Steve Cocheo, executive editor When you sent them, did you ever think they might wind up on a front page? In court exhibits? Or worse? We won’t even get into instant messaging, texting, voicemail, and whatever they invented last week. Nor some of the hidden elements some e-mails may contain, such as cuts, edits, and comments still in the file, and “metadata,” information regarding the history, tracking, and management of the electronic file. All of these are things that the right expert with enough money and motivation may be able to uncover. Paranoid yet? You should be. Discovering E-discovery “It took lawyers a few years to figure out that there’s gold in them thar e-mails,” says attorney and records retention expert John Montaña. “But today they are making e-mail an issue in lawsuits. If you are involved in lawsuits, you’ll be asked for e-mails.” Montaña, vice-president and general counsel for PelliGroup, Inc., Reston, Va., says that attorneys have found e-mail one of the most productive veins to mine during the process of “dis- 44 JUNE 2007/ABA BANKING JOURNAL www.ababj.com/subscribe.html
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