eDiscovery: What Not to Do

Continuing with our eDiscovery series, I’d like to talk today about a real-world scenario illustrating the consequences of failing to produce requested electronic documents.

 

As I discussed in previous blogs, organizations can now be penalized, financially and otherwise, for failing to produce e-mails and other electronic documents during the legal discovery phase. A prime example comes from a case involving a major corporation based near our own Minnesota headquarters.

 

Best Buy Co., along with Microsoft, is involved in a class action lawsuit in which they are accused of signing up legions of customers to a trial period of Microsoft’s MSN internet service and then charging their credit cards without authorization. When pressed to deliver relevant e-mail communications, Microsoft delivered and Best Buy stalled.

 

Network World quotes a lawyer for the plaintiff:

“We had all this e-mail coming from Microsoft discussing basically the issues that are key to our case, and some of them were discussions with Best Buy,” she said. “We were getting virtually no electronic documents or e-mail from Best Buy. It seemed very suspicious to us.”

And looking suspicious in a courtroom isn’t good. In speaking with a lawyer specializing in eDiscovery matters, I learned judges can order juries to consider a party’s failure to produce e-documents when assessing its overall credibility. Best Buy may also face stiff financial penalties if documents are not produced in a timely manner.

Furthering the case for solid data retention and e-mail archiving policies, the article goes on to state that requests for archived e-mails are hardly a rarity.

Brian Babineau, an analyst at Milford, Mass.-based Enterprise Strategy Group, said that his firm’s research has found that three out of four organizations that go through court-ordered electronic discoveries must produce e-mails related to the queries.

At Network Instruments we’ve been holding discussions to determine whether our GigaStor™ line of products, which capture and store all traffic traversing the network - up to 48 TB of data – can be useful in eDiscovery situations; the answer, in short, is yes.

 

In my next blog I’ll discuss the ways in which products like GigaStor may be used as a legal safeguard and what types of organizations are best suited to this type of solution.