A question of scope
This internal compliance will prove a godsend should an organisation become embroiled in a legal battle.
It can used, for example, to internally discover whether the organisation has a good case to defend itself.
"If you find that your employee or business acted in the wrong, you can look to a settlement to minimise costs," Mann said. "If you understand that you were not in the wrong, you can be in a stronger position to fight it."
Generally speaking, the lawyers for an opposing party executing e-Discovery will try and broaden the scope of the search, while those acting in that party's interest will be trying everything possible to narrow the scope.
Most often, it's when the scope of discovery is too broad that costs blow out.
It's therefore very important to possess the kind of search and archiving technology that can filter a network's data based on content or category, Mann said. Without it, the opposing party may go for broader scope -- requesting an image of any machine or server that possesses information even remotely related to the case.
"If ever you have to get an image from over 50 machines, the scope is starting to become less than viable both in terms of expense and the time it takes," he said.
Mann said there are many enterprise search products and storage vault offerings on the market to address these needs.
These tools can give a CIO the assurance they need around the accuracy of the answers they are getting when they seek data from within the organisation.
Having a technology that can search an organisation -- from servers to end-points to archives of e-mails -- and only list relevant data can reduce an e-Discovery process from months down to weeks, he said.
"The legal costs and costs of collection can be reduced considerably."
Tools aside, an organisation also needs to have the right policies to ensure the integrity of data.
A common problem during litigation, Mann notes, is that a defending party will claim that all information relevant to a matter is in a storage vault.
However, their opponent in the litigation might be able to prove, for example, that users in the organisation are able to store e-mail attachments on their end points such as desktops and laptops -- and can push to have these devices included in the scope.
"Its not enough to even say you have a policy that everything is stored on the server," Mann said. "That policy needs to be enforced. If not, it can be argued that it is in scope or relevant data will be missed."
A more streamlined court system
Mann believes that the proposed changes around e-Discovery are important in that they will resolve the bulk of arguments about scope.
"You can spend months arguing about scope, or any other variable you introduce," he said. "But if a court mandates that scope, you are honour bound that it will happen in a certain way."
Mann expects that a more streamlined e-Discovery process will mean more litigation cases, and a greater chance e-Discovery will form a component of those cases.
Vincents Chartered Accountants' Byrne says that the ultimate aim of the reforms is to ensure court access for all Australians.
"We want to ensure that you don't have to have substantial financial and technological resources just to get before the court," he said.
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Brett:
E-discovery reflects the natural collision of technology and legal practice. As an enterprise creates an ever-growing mountain of records, adversaries of course want access to it. Knowing that litigation and e-discovery are inevitable, an enterprise can use technology proactively to make records more benign. What do you think? --Ben http://hack-igations.blogspot.com/2008/05/nix-smoking-gun-e-discovery.html