All litigators should read the front page of the New York Times today. There’s a public pronouncement of an e-discovery challenge.
Firms Fret as Office E-Mail Jumps Security Walls discusses the challenges of managing corporate e-mail when so many employees use personal accounts on services such as Google, AOL, Yahoo, and Hotmail. Beyond concerns about trade secrets leaking
“companies could run afoul of federal laws that require them to archive corporate mail and turn it over during litigation… Lawyers in particular wring their hands over employees using outside e-mail services. They encourage companies to keep messages for as long as necessary and then erase them to keep them out of the reach of legal foes. Companies have no control over the life span of e-mail messages in employees’ Web accounts.”
This issue should not be news to litigators; it’s certainly not to electronic discovery or legal technology consultants. In the past, lawyers seem successfully to have pleaded ignorance on issues like this. With the issue landing on the front page of the Times, the “dog ate my homework” types of excuses will no longer work.