Getting in our time machine and going back to 2006, when the ediscovery rules in federal civil litigation were amended; lawyers at the time were concerned with how to capture and reproduce email, text messages, and instant messages. Failure to do so could lead to charges of spoliation, and court sanctions. (Going back even further, the civil discovery rules required much the same production in the early 1990s, but few people follow those rules).
Fast-forward: Just after the IG delivered a report on the targeting of conservatives, and in the midst of the investigation, 2013 email from Lois Lerner asks IT whether instant messages are being archived, and is informed that, while they could be, they aren’t. “IRS Didn’t Archive Instant Messages,” Wall Street Journal, July 10, 2014 A4 Even if they related to the subject of a federal investigation, or something within the jurisdiction of an agency of the US government? Where were the lawyers?
While ediscovery is certainly one aspect of information governance, it is not the only one; in fact, is not the major one. So, too, is obstruction of justice.
Does your company do a better job of protecting and preserving relevant communications in the midst of ongoing litigation?