Discovery in Business Lawsuit?
How far will the law will go to get the e-mails, text message records, that are relevant to a legal inquiry like a lawsuit?
An eye-opening Canadian case is CIBC World Markets Inc. v. Genuity Capital Markets,  O.J. No. 614 (S.C.J) (QL).
CIBC sued Genuity, alleging it had stolen trade secrets from CIBC. When a lawsuit like this is filed, the parties are expected to apply a litigation hold to ensure no records are destroyed. But a litigation hold is hard to implement if a litigant is not causing copies of all business e-mails to be stored in a central archive. Furthermore, if the litigant is not storing copies of all its employees’ messages, then it may be forced to canvass their home computers.
In the CIBC case, the court permitted forensics experts to go to great lengths and expense to locate e-mail. They were granted access to all PCs, BlackBerries (smart mobile phones) and similar devices under the influence of the Genuity's employees, including devices at home (like iPods, iPhones or Androids) and belonging to spouses and children! (In an investigation like this, imagine what goes through the mind of an employee who might have been involved in any kind of marital strife or infidelity.)
The lesson from the case is that enterprises are wise to keep extensive, centrally-managed archives of all business-related e-mail (including webmail, SMS, MMS [multimedia message service], text messages and instant messages) by employees and other personnel. That way they avoid the expense and hassle associated with searches of home computers and other personal gadgets.
This topic grows more important as informal electronic contracting, such as trading in OTC derivatives, attracts greater scrutiny, regulation, litigation and investigations.
Mr. Wright teaches electronic data and records law at the SANS Institute.