One of the primary attributes of IT employees, the very people who carry out the responsibilities for document preservation and categorization, is their obsession with minutia. This is what makes a programmer a programmer. Without that all consuming zeal for detail, it would not be possible to come up with even the simplest form of software that would be broadly usable by business people.

So, IT managers tend to hire people who (and I am lifting direct quotes from the various Internet job sites to illustrate my point) “can work with limited direction,” “are challenged by cutting edge technology,” “are team players” (read that as a person who will takes orders), and “can handle multiple projects in a fast-paced, fun environment.” Be honest, would you want to entrust the implied e-discovery costs to a post-adolescent twenty-something who is hired to work on multiple projects in a “fast-paced, fun environment?”

It is this very minutia-orientation that is the kiss of death for litigation that looks at HOW data was preserved up to the time of litigation. Often IT employees simply don’t see the forest for the trees. Since litigation anticipation is not part of the IT manager’s job description, he or she usually doesn’t plan for it. In the absence of written policies and procedures that address the requirement for preservation and categorization of electronic documents and media, the haphazard method of handling backups can result in crippling e-discovery expenses that may preclude being able to proceed to trial, the inadmissibility of evidence, accusations of spoliation, sanctions designed to impugn the case of and in certain cases to punish the spoliator, and in the end a catastrophic loss of a case.

In instances where written policies and procedures exist that define best practices for the preservation of e-documents, IT personnel behave the same way that they do in most every other area of life, i.e. they do the task, but they often don’t document the fact that they did it. If anyone doubts this is true, ask any programmer when was the last time he wrote documentation for a program he created. Often the answer will be, “Never.” In the cases where that is not the answer, it might be something on the order of, “After it was released.” The urge to document actions contemporaneously is not part of the programmer’s DNA, and it is the absence of contemporaneous attestations of having completed the requisite procedures that can break the chain of custody from a legal perspective.

I cannot say anything about Guidance Software as a company because I don’t know anything about it, and I cannot say anything about its leadership because I would be speaking out of ignorance. What I can say is that if that company hired its employees in the same manner as that of other software companies and even if it had written policies and procedures, it is altogether possible that it would not have found the missing e-mail messages.

Companies in general need to start crawling out from beneath the rocks to see the light of day. Since the year 2000, UETA and E-SIGN have been in effect, making electronic documents the legal equivalents of paper documents for domestic and international business transactions. The Federal Rules of Civil Procedure as amended in December, 2006, plus later case law directly address what is expected with respect to disclosure and preservation of electronic documents. There is no magic bullet that will allow businesses to ignore these factors and still be regarded as living in the real world.

Similarly, attorneys should give some attention to educating their clients about the need for instituting best practices with respect to electronic document preservation. Not to do so contributes to the expense of e-discovery when litigation does occur. The legal industry’s focus on digging up the evidence after the crime has been committed instead of preparing non-litigating clients to handle and manage its documents in a court-friendly fashion is comparable to the practice of medicine in which doctors primarily focus on people who are already sick instead of educating them to increase the likelihood of their staying healthy. Clearly, operating in a crisis mode ensures that clients will pay what is required simply to have a defense, but is such a non-preventative practice defensible when it is known by those in the practice of law that the field of e-discovery is a minefield of hazards not easily anticipated by the uninitiated?