12 July, 2012
In an increasingly electronic world, paper-based discovery processes such as bulk printing, mark ups and circulating documents for review are rapidly becoming a thing of the past. The focus is now on e-Discovery and organisations must get to grips with managing and finding information which exists nowadays in so many places, (e.g. file management systems, file shares, desktop, portable devices, back-up tapes etc.) and in so many diverse formats (e.g. MS Office, PDF, PST, Zip files etc.).
The huge challenge which organisations face today is implementing a defensible collection process into their GRC strategies whilst bearing in mind the overriding need for proportionality. Given the sheer volume of data which exists in so many locations and so many different formats, it simply is not realistic to expect an organisation to retain copies (in electronic format or otherwise) of every document created and, indeed, such a retention policy would be impossible for most organisations to implement, with few having either the huge funds or resources necessary to implement it.
What is required, therefore, is a well thought out approach to retention and destruction of data. A senior officer (e.g. the Chief Information Officer or General Counsel) should be tasked with overseeing the strategy which will require a streamlined approach involving input from both legal and IT.
In developing an e-Discovery strategy, consideration must also be given to local laws governing the retention and transfer of data. In the context of companies having a Chinese arm, for example, issues such as the impact of Chinese State Secrecy Laws have added an extra layer of complexity for those in charge of information management and e-Discovery. It is therefore necessary for the officer tasked with implementing a global e-Discovery strategy to take into account all local laws and regulations so that the retention or transfer of data does not cause the organisation to be in breach of provisions which could, as in the case of Chinese Secrecy Laws, have civil or even criminal consequences.
For further information, please contact:
Alfred Wu, Special Counsel, Freid, Frank, Harris, Shriver & Jacobson
