How to Deal With Electronic Records: An E-Discovery Q&A

How should CIOs be treating those murkiest of electronic records, Voice over Internet Protocol (VoIP) data? We asked Adam I. Cohen, a partner in the New York office of Weil, Gotshal & Manges LLP. He is nationally recognized for his work on discovery and document retention issues associated with electronic information and is the co-author of Electronic Discovery: Law and Practice. The authoritative 2003 primer has already been cited in four landmark e-discovery decisions by federal district courts. And the short answer to the question? Do exactly as company lawyers tell you to do.

When you talk to companies, do you find that many believe they don't have to keep a record of what was done over the phone? Absolutely. There is a lot of uncertainty in terms of what exactly is the extent of preservation obligations with respect to certain types of media. The big issue that still predominates that discussion is backup tapes.

How does a company decide what to retain? What you need to retain is going to be dictated by subject matter, not by type of media. So, for example, if there are records created by a VoIP system that deals with your 10-K, the fact that some records are created by VoIP has no bearing whatsoever on your preservation obligations.

What is the difference between record-keeping of VoIP messages versus traditional telephone messages? There are going to be different types of records created by telephone calls when you do things digitally. For example, if you look at old voicemails, analog form, there wasn't much expectation in the way of preserving them.

What are the biggest errors in judgment companies routinely make when dealing with electronic records? One is keeping information that they're not required to keep. The consequence of that is tremendous cost; when in response to either regulatory investigation or litigation, they are required to retrieve and search that information and review it for production. They find they have needlessly multiplied their burden by keeping information that has no business use and wasn't governed by some legal preservation requirement.

This gets to the heart of our audience. So CIOs need to be brought into the loop? Absolutely, the interface between CIOs and lawyers is the story. In all these cases where companies have been punished for losing electronic information, 99% of the time it can be attributed to some kind of communications failure between lawyers and IT people. Not bringing IT into the loop on legal issues is a common and serious mistake.

This was first published in August 2005

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