Wednesday, February 11, 2009

Taming the ESI Monster

Electronically stored information (ESI) is quickly becoming the bane of e-discovery as it spans everything from computer hard drives to iPods and cell phones. As illustrated by recent cases ranging from Quaalcomm and Bear Stearns, missing any of this information in the discovery process can result in sanctions.

Mark Diamond, CEO of Contoural, Inc., attempted to demystify ESI and explain best practices for dealing with it on January 22, 2009 at the Central Connecticut Paralegal Association's monthly luncheon. He explained that, while organizations should have document retention and document deletion policies, overly strict deletion policies can result in "underground archiving," or essentially, employees forwarding themselves their work emails to preserve them. This opens up a whole new world of ESI hassles in attempting to retrieve data from the employee's personal computer.

Diamond emphasized that archiving data is about control, and part of that is having a good data map of what is accessible and what isn't. Having a strong, clear retention policy that is followed by users is also important. Courts want reasonable, good-faith efforts, he said, and attempting to have a perfect policy can be the enemy of a good policy that preserves necessary data.

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