Survey Says: Businesses Settling Lawsuits to Avoid eDiscovery

By Greg McNevin

November 28, 2007: According to a new study conducted by iTracks for email archiving provider Fortiva, one in five businesses have settled a lawsuit to avoid the costly and time consuming task of searching through and recovering email.

According to the Fortiva the survey, which canvassed the opinions of legal discovery professionals, shows that a significant number of businesses have been negatively impacted by issues related to e-discovery. Somewhat alarmingly, one-fifth of those surveyed claimed that their business has settled a lawsuit to avoid complications with eDiscovery.

According to newly amended Federal Rules of Civil Procedure (FRCP) that come into effect in the US on December 1, all email has been deemed discoverable and parties to a lawsuit must meet within 99 days of a civil action being launched for a meet and confer session to disclose what information will be produced and the format in which it must be presented.

Due to this, businesses need to know where all emails are stored, how long they have been there, and they need be able to access them for presentation in a reasonable timeframe. The new rules also require businesses to be prepared to enforce a litigation hold on any email that might be relevant to a potential case, meaning that those emails cannot be deleted until the issue is resolved.

With these new rules coming into effect, it is concerning to see that almost half (47 percent) of those surveyed did not believe their legal team could adequately review archived email in the 99-day window.

It is heartening, however, to see that Fortiva found that 51 percent say they have implemented, or are planning to implement technology that allows them to speed this task, and more than one-third (36.7 percent) are already enforcing a formal retention policy for email. A further 40 percent were found to be in the planning stage of formal policy enforcement.

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