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CEOs at Risk Over Electronically Stored Information

A new independent study, released last week and commissioned by Kroll Ontrack, a company that provides e-discovery solutions and software …

A new independent study, released last week and commissioned by Kroll Ontrack, a company that provides e-discovery solutions and software to help legal, corporate and government entities recover, search, analyze, produce and present data efficiently and cost-effectively found that many CEOs might be putting themselves at risk because their organizations lack policies on Electronically Stored Information or ESI, irrespective of the fact whether they were involved or not in setting up an ESI policy.

The report says that 43 percent of the companies in Corporate America and 48 percent in the UK have an ESI policy in place to deal with litigation and internal investigations. Forty one percent of the respondents in the U.S. said that their corporations gave the in-house legal department the task for developing such a policy.

However, an alarming 19 percent of respondents in the U.S. said that the CEO should be held accountable if the policy or the lack of it results in government fines, court imposed sanctions or damage to reputation. The figure jumped to 39 percent among respondents in UK in making the CEO face the consequences of that policy.

Alongside this report, a blog on the “Top E-Discovery Software Vendors” by Aaref Hilaly, CEO of Clearwell Systems, a Mountain View, California-based e-discovery software provider offers insight into the major players in the e-discovery software solutions business.

Hilaly’s blog also invited interesting comments, prompting him to immediately post another blog clarifying his stand and viewpoints.

Hilaly writes that “e-discovery software is a new, fast-growing product area”, adding that “more and more enterprises are adopting e-discovery software solutions, and asking analysts about them, because they offer such a compelling ROI.”

Kroll Ontrack’s study proves that claim is true with only 25 percent of in-house counsel saying that they are on the ball with case law, developments and regulations relating to ESI. Less than 43 percent said they have good understanding of the ESI policy but could benefit from additional knowledge, while 31 percent said they had “little understanding or had never heard of it.”

According to the Kroll Ontrack report, such a trend has the US legal teams far more concerned compared with their UK counterparts, with 21 percent saying that “managing colossal volumes of data will be their biggest challenge over the next five years.”

Incidentally, December 1 marked the first anniversary when amendments to the Federal Rules of Civil Procedure concerning electronic discovery took effect. The amendments were designed to include e-discovery into the existing structure of the Federal court system and to guide attorneys through the process.

Electronic Discovery has today become a core issue in litigation, investigations and regulatory compliance activities. In fact, a recent survey found that e-discovery is now the top litigation-related issue for companies.

The biggest e-discovery related case was in the case of Morgan Stanley which, in 2005, was asked to pay billionaire Ronald Perelman $ 1.5 billion in compensatory and punitive damages, also because the company failed to produce e-mail messages demanded by Perelman’s lawyers. A U.S. appeals court, in March this year, handed Morgan Stanley a victory in the case.

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