” a “costs, time and effort” argument involving email is the same as when hard copy documents are in issue. For example, the cost, time and effort to produce hard copy documents which are disorganized or stored in various places could also be considerable. Such an argument may or may not prevail in this or any other case because there is cost, time and effort associated with all document production. In any event, it does not appear to me that searching email archives for producible documents is inherently more onerous or expensive than conducting manual searches for hard copies of documents.”[¶28]

The question now becomes one of proportionality between the costs incurred by Oceaneering and the usefulness of the documents to be found. The judge concludes that “[i]t is for the receiving party, in this case GRI, to do so. A receiving party knows its case and is in a better position to assess whether a document aids its position.”[¶34] In the proportionality analysis, aside from the 8M$ claim, it is also important to note that the counterclaim by Oceaneering weighted against them in its attempt to limit document production – Oceaneering must lie in its self-made bed… This decision underlines – if need still be – the need for a comprehensive approach to e-discovery and a global readiness in that matter so as not to have to run to the court to catch one’s metaphorical breath – it may not work and you’ll still have to run.

Types of data:
Structured and Unstructured

Where a document resides is irrelevant: a document is a document is a document

Instant messages: some companies deals with them as ephemeral and transitory documents. At TD, they divided the documents in a regulatroy framework and equated instant messages and emails as one type of document.

The idea is to retain the right information, in the right location for the right amount of time

COSO framework

Key player is people: without people, the system falls apart. Employees need to be involved at all stages of the process to identify all the risks that need to be managed, from planning to implementation and auditing.

Key drivers:

• Regulatory needs (Banks, SEC, SOX, etc.)
• Industry
• Business needs

One can’t focus only on the applicable laws, but also and perhaps most importantly, on the needs of the organization, hence the necessity to involve employees at all levels.

Most attendees’ organisations do not have a direct channel and opened communication between IT and legal. They need to talk when handling urgent issues. It is important to develop a clear process with continuous dialog. However, the process will depend on the organization and its risks profile.

How often is legal involved in the planning of technology implementation? What about decommissioning systems?

Federated cost : IM benefits to the whole enterprise. No particular group, particularly the legal department which is already a cost center without a prefixed budget, wants to foot the bill… Furthermore, many lawyers feel that legal is now forced to pay the price of historic information mismanagement! “Wasn’t it the IT department taking care of information? – No, IT only cares about the “T”, i.e. technology; the “I”nformation belongs to the end-users…” So, one of the first questions that needs to be answered is who pays what and how? Retention might be an opportunity for green initiatives and vice versa.

Primary challenges of retention programs is:

• Lack of clear ownership
• “Why not keep everything? Storage is cheap”
• Not a “sexy” initiative

The best way to get buy-in is to start small by grabbing the low-hanging fruits and quickly show the ROI.