How to Meet Information Governance Regulation Expectations

Dec. 2, 2011 - PRLog -- Interview by Helen Winsor, Legal IQ

Jean-Bernard Schmidtt, Deputy Prosecutor General, Investigating Magistrate, Geneva Palais de Justice, joins Legal IQ to offer an update on US and European regulatory investigations and prosecutions.

Legal IQ: First of all, how can companies best manage their risk when it comes to electronic information.

J Schmidt: That's a very broad question you're asking. They first probably will have to consider what kind of risks they want to cover. From a legal point of view, a strictly legal approach there are at least two kinds of contradictory categories they have to consider. First, they should want to keep whatever data they need for operating the company for their own operations, for tracking what's happening within the company. They will have to consider what kind of information they have to keep at the disposal of law enforcement agencies if we come in and ask for information about certain operations and things.

They will also have to do this and not infringe the personal data protection laws, especially in Europe where they are known to be stricter than in other parts of the world. I'm thinking especially of emails and similar, like Tweets like SMS and these kinds of things. Keeping in mind that the European legislation protects the secrecy of what we call correspondence which includes electronic correspondence.

Also, the company will have, and this is something we are facing ourselves, to decide what they keep under e-format. There are a lot of documents that we receive by email, but there are also documents that, for instance, we scan. Do we keep contracts, do we keep minutes of when we hear a witness, for instance, do we keep judgments, decisions, sentences etc? Do we scan them and do we keep them in electronic format?





Part II - Snapshot on the Proposed Amendment of the Federal Rules of Civil Procedure

The Honourable Frank Maas, US Magistrate Judge at the District of New York Court, joins Legal IQ to discuss the New York State Bar Association Special Committee Report.

Legal IQ: You’ve been studying the New York State Bar Association’s Special Committee Report which recommends amendment of the Federal Rules of Civil Procedure, which deal with the duty to preserve electronic information prior to the filing of a suit and sanctions for failing to do so. Now, could you just give me a little bit of background and tell us about the committee recommendations please?

F Maas: In 2006, our Federal Rules which govern discovery in the Federal Courts – and frequently are adopted in substantially the same form by many of the States – were amended to deal with issues like inadvertent destruction of evidence and form of production of electronic materials. But the Rules’ amendments did not deal expressly with the subject of sanctions and they did not deal with the duty to preserve, both of which were of great concern to lawyers and certainly to corporations that they represented. So there had been proposals along the way to have further amendments to deal with sanctions and the duty to preserve.

There were quite a number of opponents of further amendments at this point and there were two principal schools of thought. There were people who said the Rules were only amended a few years ago, let’s give them some time to operate and see whether there’s really a requirement of an amendment – and I have to tell you I was in that school of thought. Then there was a more technical concern which is that our Federal Rules of Civil Procedure generally deal with the period after a lawsuit was filed. Here, when you’re talking about the duty to preserve, you’re generally talking about obligations that may arise before a suit was filed. So the New York State Bar Association formed a special committee to deal with problems of litigation in general, but the first thing it turned to was those two subjects. I was asked to be a judge member of the committee and was persuaded by the others that certain Rules’ amendments were, in fact, appropriate at this point.




Jean Bernard Schmidt and The Honourable Frank Maas will be among the speakers at the Information and E-Discovery for Energy Conference 2012, due to take place on 17th-19th January in London. For information about the agenda and other expert speakers please visit www.energyediscovery.com, call 0800 652 2363 or email enquire@iqpc.co.uk.



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