Table of Contents

The Impact of Electronic Discovery on the Organization by John Jessen and Kenneth R. Shear
President's Message: Moving CNY ARMA into the Next Century
Chapter Member of the Year: Hagan Does it Again!
30th Anniversary: Enjoyed by Founding Members
Guest Editor's Message: Where's the Wine
What New News!

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The Impact of Electronic Discovery on the Organization
by John Jessen and Kenneth R. Shear

Excerpts from an upcoming book

Electronic evidence is fast becoming a central focus of discovery in litigation in U.S. courts, and this development presents enormous problems for corporate counsel. Moreover, with changing discovery rules, rapid accumulation of electronic data, the growing and uncontrolled use of electronic mail and the increased use of sophisticated backup and archive systems, the problem will only intensify in the coming years.

The Door Opens to Electronic Data Discovery

Only a few years ago, the majority of corporate data was stored and processed on large, expensive mainframe computers. The cost of obtaining processing time and expertise to deal with data from such a system was prohibitive in most litigation — or at least that was the perception. Paper documents remained the preferred source of discovery by plaintiff’s lawyers.

This situation has changed dramatically in the past few years. The power of the personal computer has substantially increased, causing many corporations to downsize their mainframe operations onto networks of personal computers. Correspondingly, plaintiff’s lawyers are beginning to realize that they, or specialized computer consultants, now have the power to process types and quantities of electronic data that were formerly unapproachable.

The Federal Rules of Civil Procedure:
A Growing Role for Electronic Data

In December, 1993, the Federal Rules of Civil Procedure were revised, including the creation of a new Federal Rule of Civil Procedure 26(a), requiring that a litigant turn over to the other side a list of relevant electronic data compilations — as well as paper documents — early in litigation. While the rules have an “opt-out” provision, and many judicial districts have delayed the implementation of 26(a), it is safe to say that the rules focus more attention on electronic evidence.

Many corporations, required to produce a list of their relevant electronic data within approximately three months after litigation commences, will simply be unable to do so. If the court can be persuaded that the corporation really does not have an understanding of its own electronic data, monetary sanctions may be avoided. There may still be costs, however, in the form of:

the corporation being forced into a defensive posture;
the disclosure of a weakness in the corporation’s armor; and,
potential public embarrassment in the form of the corporation being identified as an organization that does not even know what data it has.
If evidence harmful to the corporation is divulged later in the litigation, it opens up charges of a “cover up.” Worse still, if all of the pertinent evidence is not identified early in the litigation, it opens the door to such evidence being overwritten or erased during the normal operation of the computer system or the rotation of backup media. Whenever evidence is destroyed after the commencement of litigation, the line blurs between inadvertent loss and purposeful destruction.

The “Gentleman’s Agreement” to Overlook Electronic Data:
A Thing of the Past

There are several reasons why electronic data has not been properly utilized in discovery.

First, and perhaps most importantly, is that many attorneys lack the comprehensive knowledge of computer hardware, software and systems layout.
Second, if any electronic data is produced, the logistical problems in converting, storing, reading and analyzing it may be beyond the capabilities of a normal law office computer system.
Third, electronic data can be overwhelming in terms of its sheer volume and organization.
Fourth, attorneys tend to stick with tried and true approaches.
Whatever arrangements worked in the past are now crumbling as practitioners learn of the value of professionally, specifically and aggressively targeting electronic data sets.
Electronic Data Management — Its Impact on the Bottom Line

For each disaster awaiting those corporations unprepared to deal with electronic data discovery is an opportunity for those who do prepare themselves for such an eventuality.

Forward thinking corporations will take steps to develop an electronic evidence management plan that will prepare them for reviewing, evaluating and retrieving electronic data for production. Several benefits accrue from developing such a plan outside of the pressure and constraints of the discovery phase of a particular litigation.

Reduced litigation expenses
Maintaining a position of strength and confidence
Identifying strengths and vulnerabilities
Avoiding ambushes
Maintaining a consistent corporate position
Large corporations always face the danger that discovery responses in one case will be treated differently than in others. Inconsistent discovery responses can lead to problems if plaintiffs communicate with one another. Electronic evidence should be managed to avoid such problems insofar as possible.

The Future of Electronic Evidence Discovery

Electronic data is playing an ever expanding role in litigation in the coming years. The tool-of-the-trade for the legal profession is information — who did what, when was it done and what was the impact. The world of information — its creation, modification, storage and destruction — has undergone a vast transformation in the past few decades.

As attorneys develop the new knowledge and skill sets necessary to effectively pursue electronic data in litigation, corporate counsel must not only keep pace, they must also develop effective methodologies for their organizations to follow when facing the discovery of electronic data.

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President's Message: Moving CNY ARMA into the Next Century
by Martha Westbrook, Esq.

Welcome to a new ARMA year and CNY ARMA's final season in the twentieth century! Your CNY ARMA Board has worked hard to come up with a schedule that will continue to interest and educate our chapter members. We hope to broaden our attendance with planned initiatives throughout the records and information organizations within New York State.

Our meeting with John Jessen brings up the level of expertise we are drawing to the area. With John Jessen, founder and principal of Electronic Evidence Discovery, Inc., [http://www.eedinc.com] we will be presenting a speaker who is known internationally on the subject of electronic evidence and data retrieval. As records managers, it is our responsibility to make sure we are aware of the potential areas in which our companies or governments may have liability. John Jessen will show us that information can be found anywhere, even where it has been deleted. He has been featured in a PBS documentary, as well as on network news programs and in magazines as his skills have been used more and more frequently in the legal arena.

Our other speakers and programs will be equally informative, and we hope that our members recommend them to their co-workers. Often the best way to get support for our records management programs is to get co-workers and managers to understand various aspects of our jobs. To support this effort, the Board has prepared programs, which will be interesting to others, who may only peripherally have records management responsibilities. The more people know and understand about records management, the more support we will all have to carry out our responsibilities.

As we face the coming century, please understand that it is your responsibility as an ARMA member to attend our meetings, and to bring others into the network of ARMA. By broadening our base, we will all benefit in the long run. Take the time to invite at least one person to attend each meeting with you. Make it an opportunity for you to interact with someone at your company with whom you don't ordinarily work, or use the opportunity to strengthen a business relationship. Attending a meeting together will give you a common ground on which to work.
As with many organizations, the power is in the members who choose to donate their time and make a commitment for the betterment of every member. And, as with many organizations, your Central New York Chapter of ARMA is looking for interested members to make their voices heard regarding the direction of the chapter. Consider attending a board meeting, or working on a meeting committee. Make the chapter YOUR chapter, and put your mark on it! You will get even more out of the chapter through active involvement. If you are at all interested, or think you may have time to help, contact any ARMA board member and we will make sure you get the chance to participate. You will benefit in a number of different ways, both personally and professionally, and will be glad you made the effort.

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Chapter Member of the Year: Hagan Does it Again!
by Martha Westbrook

Dianne L. Hagan has once again been named Central New York ARMA Chapter Member of the Year, and it is only fitting that this is the case. Dianne completed her tenure as Newsletter Editor this year, to the support and acclaim of winning the Best Newsletter throughout all of ARMA's mid-sized chapters. In addition, Dianne has spent much time counseling members, committee chairs and peers about both chapter and professional matters. We have all benefited from her expertise and sage advice. In addition, her great memory has served us all well in chapter matters, and she can always be relied on to offer constructive support and suggestions. As Dianne tries to take a step back from her involvement in ARMA, we can count on her to continue to be a source of great information and positive support. From all of your chapter peers and friends, a great big thank you!

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30th Anniversary: Enjoyed by Founding Members

The following is a note received from Arthene Beach, who attended our 30th Anniversary meeting along with her husband Lee. Both of them were founding members of Central New York ARMA.
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Dear Martha,

Many thanks for inviting us "oldies" to the June ARMA meeting. You, your officers and members are to be commended on the successful, continued development of the chapter. We know it is not always an easy task.

The letter openers were a most thoughtful gesture - thank you. Be assured each will be placed in a prominent position on our desks.

Our expressed wishes for continued success.

Arthene and Lee Beach

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Guest Editor's Message: Where's the Wine
By Edward L. Galvin

I have always thought that a guest was to be wined and dined and otherwise treated royally. So how come this "guest" gets to work hard at putting out a newsletter for CNY ARMA?

Actually it is a pleasure to help out CNY ARMA in yet another way. I, like so many of our members, feel that if you want to belong to an organization you should offer to help to move that organization along. This is, after all, a totally voluntary group. No one is standing behind me with musket poised and ready. Excuse me though while I take a quick look to my rear.

So why a guest editor? I think it's partly because no one can fill the shoes of our previous editor, Dianne Hagan. We did however have a newsletter editor set for this year, but due to unforeseen circumstances, that didn't work out. So this year the newsletter becomes the baby of the committee responsible for each CNY ARMA meeting throughout the year. I'm chair of the September meeting - and now guest editor of the September newsletter.

I guess the only thing left to ask is if any member would like to take on the duty of editing our award-winning newsletter, please let us know. You can contact our president, Martha Westbrook at 607-797-7333. Give her a call. You'll be glad you did.

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What New News!
CNY ARMA has some news to share with you, although our members already know part of this. CNY ARMA now has it's own web site and a membership listserv!

New Web Site!

Thanks to the generosity of our one of our members, CNY ARMA now has a presence on the Internet. Ed Galvin, Archivist and Records Manager at Syracuse University, has created and is hosting our web site on his server at SU. Although still under construction, the web site will have information on upcoming meetings and a full calendar of events for the year. It will include a listing of our Board Members, an on-line version of our newsletter, links to other web sites of interest to members, and instructions on how to join CNY ARMA. The web site will be updated bi-weekly and new pages will be added as we have time and need.

CNY ARMA Web Address: http://archives.syr.edu/cnyarma/

New Listserv!

A member's listserv has also been established. This listserv is to be used solely for information/comments/questions regarding CNY ARMA. It is NOT designed to replace or augment the Records Management listserv.

The only people who are included are those who are members of the Central New York Chapter of ARMA for whom we have an active e-mail address. No one else may join this closed listserv or may post a message to the listserv.

We do not anticipate this to be a busy or active list, but rather a means to reach our members and inform them about upcoming meetings and issues involving the organization.

If you are a member of CNY ARMA and have not yet joined the listserv, please let Ed Galvin, Listserv Manager, know at elgalvin@syr.edu. Only those members who have supplied ARMA International with their e-mail addresses are currently included.

Thanks to Ed for helping us move technologically into the 21st century.