It is hardly news that we all live in an increasingly litigious society but what is shocking is that so many large companies seem to be in denial of the fact.
The emergence of new rules of civil procedure on both sides of the Atlantic, governing the release of electronic documents during litigation, provide plenty of encouragement for companies to sort out their archiving and discovery systems. But according to legal experts, many firms are steadfastly refusing to come to terms with the increased legal risks they now face - despite several high-profile cases, such as Morgan Stanley being fined a record $15m for failing to produce emails requested in a US court case.
Many firms are guilty of plunging their heads firmly into the sand and so would be ill-equipped to discover relevant emails, IM conversations or other electronic documents if instructed to do so by a judge.
While a large number of firms have failed to appreciate courts’ rapidly changing attitude towards electronic documents, litigators have not made the same mistake. Some are now said to be specifically requesting documents they know their opponents will be ill-equipped to dig out as a legal gambit, hoping that failure to produce a given email or file will force a defendant to settle out of court or alternatively leave them looking as if they are hiding something in the eyes of the court.
What is bizarre about this scenario is that the types of e-archiving and discovery systems required to comply with the new rules typically deliver major operational and process efficiencies as well as risk mitigation.
Being able to find a lost email within seconds rather than months is as likely to help
a chief executive close a major deal as to avoid getting sued. While long-term costs are also slashed if you can find a file using a search engine rather than some poor administrator who has to run around a tape library for four months.
All of which makes it all the harder to understand why so many firms still don’t have their e-discovery systems in order.
