It's Subpoena Time: Do You Know Where Your Email Is?

Remember Frank Quattrone, the investment banker who spent a very long time in federal court defending criminal charges after he forward an underlings at Credit Suisse First Boston to "clean up" their files?

How about Arthur Andersen, the accounting firm that died a painful death after federal prosecutors indicted it on obstruction of justice charges, based on a directive from its general counsel to destroy documents as part of the firm's housekeeping duties, while the feds were investigation the Enron case?

Well, apparently the in-house lawyers at the nation's top companies have short memories about this sort of thing, if you can believe a survey released by Kroll Ontrack, a division of the investigations powerhouse that helps corporations and law firm manage what is known in the legal worlds as "e-discovery."

Fewer than half of the 200 respondents said they have a policy in place for how to deal with "electronically stored information" once litigation or internal investigation has begun. And while 41 percent of U.S. companies said they delegate that responsibility to the in-house lawyers, only a quarter of the lawyers say they are up to speed on the case law and developments related to E.S.I., in other words, those billions of emails.

It's not my job, man. That was the central conclusion of Kristin Nimsger, Kroll Ontrack's president. "There is no clear definition of who should be developing or enforcing E.S.I. policies, which precipitates lack of ownership," Nimsger says.

The Kroll study was prompted, to get a snapshot of how lawyers have responded to new rules on e-discovery in the Federal Rules of Civil Procedure, which took effect last December. The rules beefed up the responsibilities of law firms hired by in-house counsel to assure the accuracy of materials produced, rather than passing the buck to their clients.

The inhouse lawyers, in turn, want to pass the buck their chief executives, according to the survey. About a fifth of them, 19 percent, said the chief executive should be held accountable if the email retention policy results in government fines or sanctions.

"That goes to the whole concept of this being a political hot potato" at companies, says Nimsger. "To me, it's almost a cry for help from legal to say that they need support and cooperation."

Note to corporate counsel: Email should go on the New Year's resolution list. Does anyone out there ever hear from the corporate lawyers about what to do with the emails once a Spitzer type comes to call?

by Karen Donovan

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