Why consider e discovery and defensible deletion policies and
procedures, are they really important?
I think in order to understand if they are important or not, we first need to understand what e discovery/electronic discovery and defensible deletion really mean. Again, Wikipedia has come to the rescue and provided me with a reasonable description of their version of e discovery and it is as follows:
“Electronic discovery (or e discovery or eDiscovery) refers to discovery in civil litigation or government investigations which deals with the exchange of information in electronic format (often referred to as electronically stored information or ESI). These data are subject to local rules and agreed-upon processes, and are often reviewed for privilege and relevance before being turned over to opposing counsel.”
Regarding the term “Defensible Deletion”, I came across a few software vendors who were in the Data Management space and they had similar versions of what “Defensible Deletion” is. “Defensible Deletion” simply put, is having policies and procedures in place for the deletion of electronic information such as emails, documents, images which aren’t needed by the business or organization for operational and compliance purposes.
Now that we have a reasonable understanding of what these two terms mean, we can explore if e discovery and defensible deletion policies and procedures really are important.
When litigation process starts, data which is identified as potentially relevant by attorneys is placed on legal hold. This evidence, which can be potential liability to any organization, is then extracted and analyzed to determine if it is relevant to the case at hand. If it is, it is then used as admissible evidence. So the more information you provide, the higher the risk.
So you might be wondering, “Are these policies and procedures really that important?”
Yes, they are extremely important. By having clearly defined and implemented defensible deletion policies and procedures, you will have established processes to delete data that is no longer useful for operational or compliance purposes, thus reducing your organizations risk. Furthermore, by having e discovery policies and procedures in place, your organization will be able to quickly and efficiently access and retrieve potentially relevant data for any current or future litigation. This can result in a significant economic benefit since the retrieval process can be very resource intensive and costly. If you have your processes well defined and an e discovery request were to materialize tomorrow, you would be prepared to respond with confidence that the data being provided to opposing council adheres to your defensible deletion policy. Additionally, this type of proactive policy enforcement ensures that you only are providing relevant data mitigating the exposure and risk posed by unwanted or hidden data.
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