The following post is part one of a nine part video/blog series on e-discovery in Microsoft Exchange 2010. Our own Marta Farensbach sits down with Paul Robichaux, Senior Contributing Editor with Windows IT Pro Magazine, to discuss some of the various features of Exchange 2010, what you can and can’t do with them, and what they mean in the broader context of the market. Enjoy!
First, I want to spend some time talking about what e-discovery is and why we have it. Most of the time, when people hear the word ‘e-discovery’, the first thing that comes to mind is ‘lawyers’. Not to be impolite, but I can’t blame them. In reality, this is largely the fault of lawyers. ‘Discovery’ is a term that indicates a legal obligation for an organization to turn over its records. This can come in a variety of forms – be it a subpoena or an administrative demand from an entity like the Securities and Exchange Commission. It could also be part of a civil suit. Perhaps you’re being sued for wrongful dismissal, wrongful termination, or any number of not so favorable things that are all subject to litigation. Needless to say, the whole discovery process is pretty well understood within the legal community.
For a long time, the process of e-discovery was unsettled. At the end of 2006, though, the Federal Government released an updated version of what we call the Federal Rules of Civil Procedure (FRCP). (Paul and Marta share a laugh after Paul admits to almost saying that Microsoft released the FRCP – how convenient that would have been!) This is essentially a playbook for people who are bringing suit in federal court, outlining the requirements and rules of procedure for civil lawsuits. As you might expect, some of it is pretty dull. However, the part that pertains to e-discovery is actually quite interesting. It sets out what exactly qualifies as an electronic record, which records you must produce, which records you can negotiate producing, and pretty much anything else you need to know pursuant to e-discovery.
We’ll let Marta start by talking a little bit about FRCP and to whom it applies. Are certain types of organizations exempt from these rules?
Marta: No. Actually, while the Federal Rules of Civil Procedure applies to federal court, it is also used as a template for a lot of the state rules of civil procedure. So, if you’re involved in litigation, you certainly have to abide by most of these rules, whether it’s at the state or federal level. From this point of view, if you’re in a lawsuit or a party to a lawsuit that’s on the civil side, you do have the obligation of electronic discovery. In addition, it’s not just about being involved in litigation. Be it state or local government requirements, compliance regulations, or even internal investigations, each falls under the umbrella of e-discovery. The difference is that only trial-based cases are regulated.
Another important thing for businesses to consider when dealing with lawsuits is that their obligation begins quite early. Not when they receive the subpoena. Not when they’re a party to the lawsuit. The obligation begins when they suspect that there might be a lawsuit.
Needless to say, it pays to be prepared for e-discovery.
Thanks for tuning in for part one of our nine part series on E-Discovery in Microsoft Exchange 2010. Check back in the coming weeks for more great info from Paul and Marta! If you’re looking for a solution to all of your Microsoft Exchange discovery woes, have a look at our e-discovery email software.