2008-05-01 17:59:45 by Posted By: John Bace, Research VP in IT Leaders - Security and Risk Management
I'm in the process of reviewing the first 150 court cases using the revised Federal Rules of Civil Procedure (FRCP) for electronic discovery (e-discovery), which went into effect on 1 December 2006. Now, I know what you're thinking - but it's not nearly as glamorous as it sounds. The decisions average 40 single-spaced pages in length, they're painfully detailed, and the writing is as dense as only a lawyer can make it. It takes several cups of strong black coffee just to get through one case, and believe me, it's not something you want to try doing late in the afternoon.
Some of these cases are making serious progress toward closing the gap between the requirements of public policy mandates and the market-driven power of technology. But far too many of them are tangled up in two fundamentally opposed, but equally dangerous, fallacies: 1) the "urban myth" that it's impossible to erase an e-mail or other piece of digital information; and 2) the idea that the only smart practice is to keep nothing.
Where e-discovery and especially e-mail are concerned, most enterprises find themselves at a critical juncture at which public policy is failing to keep pace with the evolution of technology. I call this situation "Star Wars technology with Gutenberg laws." Just how bad is the business/technology/policy disconnect? Well, when I graduated from college in 1975, I got a job with United Press International (UPI), which had just implemented a rudimentary form of computer-based "e-mail" to replace the telex (TWIX) messaging system. The messages we sent were available on the computer for 24 hours, not a second more. If we needed a copy of one, we had no choice but to print it out. That's the way e-mail was originally conceived - as the technological equivalent of a Kleenex tissue - to be used once and thrown away. But that's not the way most enterprises are using e-mail now.
The fact is, for many enterprises, e-mail is now the primary workflow tool, the primary collaboration tool, the personal archive and, in some cases, the institutional archive. If there's any e-mail product that was designed with those uses in mind - and with the robust features and functionality to support them - I'm not aware of it. And that's where the business/technology/policy gap comes from. We have tools deployed that were originally designed for ephemeral communications, which are now expected to be eternal repositories of the truth. And, of course, to compound that problem, the world is full of litigators who are happy to win cases on mechanics, rather than merits - all because somebody didn't get e-discovery exactly right.
The bottom line: Don't accept the urban myth that you'll never be able to erase an e-mail, and don't believe that the only smart practice is to keep nothing at all. The trick is to understand what you need to keep, to know where it is, and to make sure that you can get at it when you need it. It's not simple, and it's not easy, but it is absolutely critical.
Some of these cases are making serious progress toward closing the gap between the requirements of public policy mandates and the market-driven power of technology. But far too many of them are tangled up in two fundamentally opposed, but equally dangerous, fallacies: 1) the "urban myth" that it's impossible to erase an e-mail or other piece of digital information; and 2) the idea that the only smart practice is to keep nothing.
Where e-discovery and especially e-mail are concerned, most enterprises find themselves at a critical juncture at which public policy is failing to keep pace with the evolution of technology. I call this situation "Star Wars technology with Gutenberg laws." Just how bad is the business/technology/policy disconnect? Well, when I graduated from college in 1975, I got a job with United Press International (UPI), which had just implemented a rudimentary form of computer-based "e-mail" to replace the telex (TWIX) messaging system. The messages we sent were available on the computer for 24 hours, not a second more. If we needed a copy of one, we had no choice but to print it out. That's the way e-mail was originally conceived - as the technological equivalent of a Kleenex tissue - to be used once and thrown away. But that's not the way most enterprises are using e-mail now.
The fact is, for many enterprises, e-mail is now the primary workflow tool, the primary collaboration tool, the personal archive and, in some cases, the institutional archive. If there's any e-mail product that was designed with those uses in mind - and with the robust features and functionality to support them - I'm not aware of it. And that's where the business/technology/policy gap comes from. We have tools deployed that were originally designed for ephemeral communications, which are now expected to be eternal repositories of the truth. And, of course, to compound that problem, the world is full of litigators who are happy to win cases on mechanics, rather than merits - all because somebody didn't get e-discovery exactly right.
The bottom line: Don't accept the urban myth that you'll never be able to erase an e-mail, and don't believe that the only smart practice is to keep nothing at all. The trick is to understand what you need to keep, to know where it is, and to make sure that you can get at it when you need it. It's not simple, and it's not easy, but it is absolutely critical.
