How the BP Deepwater Horizon Blowout is Affecting eDiscovery

eDiscovery has become an increasingly important part of the litigation process in recent years for many of those working in the legal profession.

In the United States the revised Federal Rules of Civil Procedure from 2006 detailed that firms are required to know what electronic data is stored and where it is, and to demonstrate that any policies the company has created in the area are being adhered to.

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An obligation was also put in place which requires electronically stored information (ESI) for a case to be delivered within 120 days of the complaint being served—making time an important factor.

In a letter to Federal Agencies just one year after the rules were amended, the acting associate attorney general William Mercer highlighted that as firms became more familiar with the legislation, the importance of eDiscovery would further increase.

More recently the BP blowout on the Deepwater Horizon rig and the subsequent investigation have acted as a reminder to the industry about the importance of ensuring the correct information is available in the event of a disaster.

Oil and gas companies would therefore do well to invest in their data management processes to ensure that information is easily attainable for eDiscovery—particularly as the disaster is likely to lead to tighter regulation.

Uncertainty Over eDiscovery Process

Despite the growing importance of eDiscovery many companies still feel that they are not adequately prepared to deal with a request.

Research conducted by the Economist Intelligence Unit for Deloitte Forensic Centre found that 25 percent of businesses do not feel that they are prepared for an eDiscovery exercise, while a further 33 percent stated they were only partially prepared.

Understanding of eDiscovery diminished the higher up the corporate hierarchy people were, with 55 percent of organisations claiming to have executives with a commitment to the practice. The figure dropped to 16 percent for c-level executives.

Furthermore companies appeared to be struggling with the implementation of new technologies in eDiscovery, with two-thirds expressing concern about the impact social media will have and just 9 percent believed they would be able to deal with a request that requires information from the cloud.

eDiscovery and the Cloud

Cloud computing has reached prominence recently thanks to its cost benefits and storage capabilities. Yet for those handling sensitive and confidential information, there are serious reservations about handing that information over to a third party and the consequences of such data passing into different jurisdictions.

eDiscovery has been identified as one area that could benefit significantly from leveraging the cloud. According to Gartner, by the year 2015 many companies will use cloud-based services in conjunction with context-aware services to produce more relevant results when searching through large volumes of data.

Whit Andrews, vice president and distinguished analyst at Gartner, said that many searches used to simply be conducted using on site systems as "the indices that search engines use to select results for users generally contain significant amounts of sensitive information, and executives balked at allowing such data to exit the premises and enter the cloud."

"However, inclinations to allow sensitive data—such as e-mail and discoverable information in eDiscovery processes—to enter the cloud are changing companies' attitudes toward such approaches," he added.

Gartner's Global IT Council for Cloud Services recently published the Rights and Responsibilities for Cloud Computing Services in which it details that users of cloud services must be informed of the legal requirements that the customer must meet in the jurisdictions in which the provider operates.

The guidance explains: "The service consumer needs reassurance that the provider does not violate any country's rules for which the consumer may be held accountable."