Monday, October 20, 2008

Good planning means never having to say “whoops?”

The attorney-client privilege is a doctrine which says that you don’t have to disclose information to the other side in a lawsuit which involves discussions with your attorney. The idea is that you should be able to speak frankly to your attorney about case strategy without worrying that the other side will be able to get that information. It’s obviously pretty important to keep these discussions confidential.

However, in certain scenarios, courts have found that parties have waived their privilege. By insufficiently reviewing the electronic information they sent to the other side, the court in Victor Stanley, Inc. v. Creative Pipe, Inc. found that a company waived their privilege. They sent stuff they shouldn’t have, and now the other side could use it against them. It is another reason to have good Records Retention plans and Legal Hold plans in your company, with knowledgeable people overseeing them. Good plans help you know what you have and where you have it, which means you can search and review the information before sending it out to your opponents. You won’t need to say “Whoops! We didn’t mean to send you that stuff!”

Tuesday, October 7, 2008

A lesson in avoiding disaster

In a recent court case, Southern New England Telephone Co. v. Global NAPS, Inc., deliberate destruction of computer files, along with other discovery violations, lead to a $5.2 million judgment against the defendant. Basically, someone had used a program to delete files from company computers when they shouldn’t have and it cost them. How can you avoid this type of multi-million dollar disaster? It would appear that this defendant either did not know what type of software was installed on their computers and who could run it, or they failed to clearly document when it could not be used, or both. Your company needs to have both Retention and Legal Hold policies clearly explaining what records need to be retained to comply with retention laws and what information needs to preserved for imminent audits or litigation. Also, if your employees are using data “cleansing” software, you should control its use through policy, at a minimum. Do you have a plan to protect your computer data if you are involved in a lawsuit? Does your plan (usually called a Legal Hold) clearly prohibit an employee from deleting or altering your computer data and set forth dire consequences if they don’t follow the plan? It should!

Welcome to Information Nation

Welcome to Information Nation, the blog on information management compliance by Kahn Consulting, Inc. Information Nation will present news and events happening in the legal, compliance, and policy arenas of information technology and information lifecycle management. Information Nation will focus on issues of interest to all executives and managers concerned about the impact of information on the enterprise. Topics such as information management policy development and implementation, records retention, compliance assessment, electronic discovery, and the proper role of technology in these areas are just a few of the subjects we plan to address.

The main contributors to Information Nation will be the professionals of Kahn Consulting, Inc.; professionals with years of experience assisting companies in harnessing their information assets and helping them maximize the value of those assets. The experts at KCI take a multidisciplinary approach—from legal, technological, records management, business, and compliance perspectives. You can expect to see posts covering all of these domains.

Our objective at Kahn Consulting is to provide value for all of our clients. Our objective for this blog is to provide value for you.

Thanks for being a citizen of Information Nation.


Randolph A. Kahn, ESQ.
President and Founder
Kahn Consulting, Inc.