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Friday, August 10, 2007

What might get revealed in e-discovery?

I saw an article about a Minnesota man who is requesting the source code to the breathalyzer the police used during his arrest for drunk driving. How's that for e-discovery?

Apparently the purchase contract included granting the state, "all right, title, and interest in all copyrightable material".

And the Minnesota Supreme Court agreed with him. While most organizations are not bound by such contracts allowing the release of their intellectual property, it does point to one of the major issues in e-discovery-- that it can be difficult to segregate privileged, confidential and trade secret email from the rest of the discoverable materials. So you get to pay (and pay) the e-discovery firms to do this segregation after the fact.

I'm not denigrating the services they offer, just suggesting that an ounce of prevention is worth a pound of cure.

Specifically, if you have an email archive, you should be tagging messages that are from inside and outside counsel, executive management, or contain intellectual property. This definitely contributes to good archive hygiene.

One way to make this much easier is to require all documents containing proprietary or confidential information to be marked as such. Then you can tag these documents as they enter the archive. In this case, a little can go a very long way.

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