How often have you watched the news on television and seen people carrying boxes full of electronic media and digital files out of some well-known company's headquarters? It's a familiar scene in the United States, because of the number of companies subject to e-discovery actions. But even though this subject is disturbing the sleep of CIOs in companies large and small in the U.S. - and even though vendors of tools supporting e-discovery are all looking for the next "killer app" - most Europeans just look on and say, "What on earth is this 'e-discovery'?"

The concept of legal discovery (called "e-discovery" when electronic information is involved) is unique to the "common law" countries - notably the U.S., the U.K., Canada, Australia and New Zealand. Discovery in common-law civil litigation is a form of interrogatory in which both parties agree to the pretrial exchange of information, so that the plaintiff can prosecute a cause for action and the defendant can build a defense. By contrast, in countries with legal systems based on the Roman or Napoleonic traditions - which is to say, most of continental Europe - the obligation to produce information that is relevant to the cause for action is nowhere as comprehensive as the obligation attached to discovery in common law.

There is an important difference between criminal and civil litigation, irrespective of a country's legal system. In a criminal case, if the authorities have a warrant or an indictment, the subject is obligated to produce relevant information, and this is true both in common-law countries and in continental Europe. In civil litigation, however, only common law requires the pretrial production of information and its exchange between affected parties. In non-common-law civil litigation, the relevant information is produced before the judge for consideration and evaluation.

Despite these differences, there are some important lessons for all Europeans about e-discovery and about legal discovery in general. The first is that if an external party demands information, whether during civil or criminal proceedings, it pays to deliver that information quickly. Gartner has seen many cases where enterprises simply didn't know how to find the requested information or couldn't produce it for several days - just long enough to generate some damaging media coverage.

The second lesson: It also pays to be able to deliver precisely the information requested. Law enforcement officers may seize folders and binders, disks and tapes, files and e-mails, reports and logs - anything they can get their hands on, really. This may include information that is not relevant to the case, and it may include information that is highly sensitive. This information will be reviewed, processed and analyzed, and some of this sensitive information might leak to the public or to competitors. It's much better to be prepared to hand over just the requested and required information.

The e-discovery landscape is made even more confusing by international jurisdictional differences. In the global economy, a business relationship with an entity in the U.S. is becoming more the rule than the exception. But a company's duty to release information following a U.S. legal discovery claim - for example, for a European subsidiary - and how that would be seen in relation with European privacy legislation remain unclear at best. E-discovery rules require quick delivery of information that has not been tampered with, but privacy protection requires that personal data be removed first.

E-discovery simply does not exist in most European legal systems, but European companies would be well-advised to familiarize themselves with the concept, in case an e-discovery claim originates elsewhere. Companies that have processes and automation for information archiving and retrieval, document and records management, and a retention policy (including disposal when information is no longer needed) will be well-prepared for any e-discovery claims that arise.