Without Effective Email Archiving, ‘Clawback’ and ‘Quick Peek’ Agreements May Be Only Options

Posted by Gregg Mayer on Wednesday, February 6th, 2008   

If you don’t have an archiving system that can quickly and effectively retrieve specific, relevant email and other ESI, then you may be looking at having to open up all of your ESI – confidential material and all. Under the federal rules, “clawback” and “quick peek” arrangements are two possible ways to deal with e-Discovery in litigation. CIOs should know a little something about them because these concepts evolved due to the proliferation of ESI.

The better you understand your ESI archiving, and the better your archiving system, then the better choices you and your lawyers can make when it comes to deciding how to deal with e-Discovery.

Under a “clawback” agreement, you opt to give the other side all of you ESI, and then you “clawback” any inadvertently disclosed privileged material that you shouldn’t have given them.

Under a “quick peek” arrangement, both sides agree that the party requesting the ESI may hire a technology expert to access the other party’s computer system. The expert extracts all of the ESI and turns it over to the party who requested it. That party then reviews the ESI, pulls out what it wants, and then shows it to the producing party to see if anything in there might be privileged. If it is privileged, it cannot be used.

As you might imagine, neither of these arrangements are exactly ideal. In both cases, there is a risk confidential and privileged information may be disclosed to the other side. Even if the other party cannot use it, the cat is still out of the bag.

Your lawyer will want to know from you how your ESI is stored. Whether the “clawback” or “quick peek” is appropriate will depend on how well information is archived and how quickly and specifically it can be retrieved. The better your email archiving system, the better your choices.

Here’s a discussion of clawback and quick peeks.

What Would The Most Famous E-Discovery Judge Do To Ensure ESI Was Properly Maintained?

Posted by Gregg Mayer on Monday, February 4th, 2008   

Judge Shira A. Scheindlin, who gained fame for her multiple opinions on e-Discovery in the precedent-setting Zubulake case, told interviewers the top 10 things she would do if she were suddenly off the bench and general counsel for a Fortune 500 company:

1. I would be sure there is a well-thought-out records retention policy in place for business purposes that takes into account any statutory or regulatory obligations.
2. I would make sure that someone is really in charge of records retention and that she knows what she is doing. This person should probably not be the head of the IT department, but someone whose primary obligation is deciding what should be retained and how.
3. I would set up a records retention committee that meets regularly. The committee should include the general counsel — that’s me! — a senior executive, the head of the IT department and the records retention manager. Minutes of these regular meetings should be kept and circulated among all the participants.
4. I would disseminate the records retention policy to all company employees, and then I would find a way to test them on whether they have understood and implemented the policy.
5. I would set up a response team every time there is a litigation-need to preserve documents.

See the rest of her tips in this transcribed interview.

Welcome!

Posted by Gregg Mayer on Wednesday, January 30th, 2008   

CIOLaw.org launches today. This new Web site and blog offer a central site for Chief Information Officers to find information about news surrounding electronically stored information (“ESI”).

In today’s e-world, CIOs are faced with more responsibility than ever to properly archive email and other ESI. Regulations require keeping ESI over long periods of time. New e-Discovery rules add extensive burdens not only to properly maintain email and other ESI in archives, but also to have the ability to quickly modify retention policies. Failing to do so could cost millions.

Dozens of e-Discovery blogs already exist. Some are helpful. Some are meant mainly for lawyers. Some stopped working. CIOLaw.org offers the IT professional a centralized, practical, easy-to-follow guide through the rapidly evolving world of ESI and the legal system. It is written with the non-lawyer in mind.

CIOLaw.org illustrates important e-Discovery concepts using legal cases that CIOs should know. It provides information about basic legal terminology. Moreover, CIOLaw.org will provide up-to-date news about the world of ESI and the law.

Welcome. Send us questions. Send us feedback. We hope CIOLaw.org proves helpful to you.

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