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Practice Tips

Electronic Records: Opportunity for Increased Efficiency
by William A. Fenwick, Esq., Fenwick & West LLP
In October 2000, the School of Information Management and Systems at the University of California at Berkeley performed a study titled, "How Much Information."1 Some interesting conclusions concern how much information is being created annually and what portion of that information is in printed form.
The world produces between 1 and 2 exabytes of unique information per year, which is roughly 250 megabytes for every man, woman, and child on earth. An exabyte is a billion gigabytes, or 1018 bytes. Printed documents of all kinds comprise only .003 percent of the total. Magnetic storage is by far the largest medium for storing information and is the most rapidly growing, with shipped hard drive capacity doubling every year. Magnetic storage is rapidly becoming the universal medium for information storage.
In most companies, the percentage of information stored in paper is probably in the range of 5 percent to 10 percent, and likely declining rapidly. That means that 90+ percent is in electronic form only. The challenge corporate counsel faces is how to decrease the cost of responding to production requests seeking information in electronic form.
Between the information needs of businesses and the legal requirements for reporting, preservation and retrieval of various types of information, there lies an extraordinary opportunity for increased efficiency. The following tips will serve to guide corporate counsel in seizing upon this opportunity:
- Adopt a method for data storage and retrieval that suits electronic records.
- It is no longer economically feasible (or safe) to rely on information storage and retrieval practices left over from paper processes.
- New technologies provide easy access to information stored electronically, and position the company to quickly search electronic data to determine what information is subject to discovery and what information may be relevant.
- Form a partnership between inside counsel, outside counsel, and IT personnel.
- Few businesses ensure that corporate counsel is involved in the decisions related to the creation, organization, and retention of electronic records, instead treating the area as the preserve of Accounting and IT personnel. Even fewer include outside counsel in these matters.
- From representation of other clients, outside counsel frequently has electronic discovery experience that can be leveraged to benefit the company.
- Do not fear the company's electronic records.
- Information contained in electronic records can help the company's position in a legal proceeding just as easily as it can be harmful.
- Courts are increasingly critical of the "ostrich head-in-the-sand" mentality. Recent decisions require early and thorough review of a company's electronic files.
Profitable survival of many companies may be directly linked to their ability to retrieve and use information in electronic records. Yet, very few companies are developing a database or records ontology that reflects how they are organizing and storing electronic information, which would permit them to quickly determine what information they have and where it is located. The time to adopt a new approach is now.
1 Peter Lyman and Hal R. Varian, "How Much Information" (2000), http://www.sims.berkeley.edu/research/projects/how-much-info/.
William A. Fenwick is a founding partner of Fenwick & West LLP and is a member of the Litigation and Intellectual Property Groups. Fenwick & West has offices in Mountain View, CA, Washington, D.C., and San Francisco, CA.
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