"Electronically Stored Information (ESI) has become
invaluable in litigation today and in many countries its disclosure
is a requirement."
Large data volumes, distributed data sources and multiple
stakeholders characterise typical business in today's digital
world. Mobile and wireless technologies have further increased data
volumes and data sources, while permitting access to data anywhere.
Coupled with the ever increasing data volumes is the inability to
keep up with effectively managing the storage, security and
transfer of this Electronically Stored Information (ESI).
ESI has become invaluable in litigation today and in many
countries its disclosure is a requirement. The costs associated
with it are significant, posing a major challenge for companies
faced with litigation and regulatory investigations requiring
extensive data collection and review. The need for businesses being
prepared to adequately respond to requests is a priority.
Unlike collecting boxes filled with lever arch files from an
office, ESI requires a different approach due to the sheer volume
of information (e-mails, documents and databases) that are
potentially relevant. ESI can be easily altered (intentionally or
not) and data thought to be deleted can often be recovered.
Therefore, specialised tools are required to collect, preserve and
process this information. This process can be time consuming and
costly if not planned and managed correctly. Protection of privacy
and privileged information is more difficult in the electronic
realm and with the pending Privacy and Data Protection Bill in
South Africa this also requires consideration.
Being prepared for electronic disclosure starts with an
executive e-disclosure policy, governed by internal procedures and
government regulations concerning storage of data and should not be
developed in isolation of a company's technical infrastructure.
Challenges such as complex system architectures, remotely archived
data and system availability need to be considered as policies are
meaningless if they cannot be practically implemented. These should
differ in language (technical as opposed to legal) but need to be
aimed at aligning the Information Technology (IT) and Legal
Once these policies and procedures are in place and all sources
of available data have been documented, a 'dry run' based
on a 'mock' regulatory matter is recommended.
To save time and costs, ideally in-house lawyers should be
educated up-front regarding the internal IT infrastructure and in
the use of various e-discovery tools and processes.
By combining sound e-disclosure policies and procedures with
effective data management as well as collaboration between IT and
Legal departments, companies can respond timeously to requests and
reduce the amount of data collected, processed and reviewed in a
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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