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CyTRAP Labs – are you ready to act swiftly during the e-discovery phase?

December 21st, 2006 · No Comments ·

So what does it mean when you hit the send button. Communication via the internet offers many pitfalls, not least the varying legal approaches around the world.

Nonetheless, the main reason court cases have been lost and businesses embarassed by e-mail lapses is that employees have failed to regard e-mail as essentially the same as hard copy. In fact, there is a general failure to understand what it means when you hit the send button as some firms and their associates have found out the hard way (use Login as a guest, no registration required):

Morgan Stanley – 1 – costly error

UBS – judge looses patiences – lack of security costs a few cents and some change

_What should be done?

Organizations need to set up a standard process for how to deal with documents, a process that is transparent and repeatable. The process needs to be in place, and it needs to work, standard operating procedure, with integrity and with rigor. In turn, an organization that already has its discovery plan in place can spend the first 30 days thinking about how it can win the case, not calling in outside counsel to help put together the discovery plan in the first place.

_How to deal with the problems?

Some firms may have chosen to prohibit the use of instant messaging software or web-based e-mail services such as Yahoo!. But this does not seem practical considering today’s mobile worker and instead, awareness raising may do the trick. Hence, the employee may use such technology if required but all instant messaging is done via the corporate server to assure archiving and, as importantly, when using Gmail, the employee sends a cc to his or her coprorate account.

The importance of the duty to preserve [electronic data] and put processes in place for very early discussion between litigation parties about the scope of that preservation and what’s to be done afterwards must be emphasized.

Accordingly, putting in place policies, procedures and technology that aid in records management and retention is a must. As well, such efforts help in reducing the cost of litigation.

Hence, you must invest in a e-mail archiving, e-discovery, indexing system that includes e-mail analytics tools (sometimes also called document analytics tools) to sift through tons of data quickly.

We believe that the law in the US is typically five years or more behind the technology. Accordingly, the law tends to look at communication and internet issues via the rear-view mirror.

Europeans are well adviced to loose their dangerously casual attitude to e-mail. This means that employees must be educated to treat e-mail with the respect it deserves. For instance, ‘receipt’ is interpreted as being when a person could reasonably be regarded as having openend up an e-mail.


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