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While viruses and hackers have companies scrambling to protect their computers from attack, a survey of trial lawyers shows that corporate America may be leaving itself vulnerable in another technological arena — the courtroom. The survey of 216 members of the American Bar Association’s Litigation Section, conducted at its April meeting in Seattle, shows that while vast amounts of corporate data are stored electronically, 83 percent of the lawyers surveyed — mostly outside counsel — said that their clients are unable to produce such data for civil discovery. Released on May 15, the survey was conducted by PricewaterhouseCoopers and the ABA. The lack of preparedness is especially serious given that 70 percent of the respondents said that they expect a dramatic increase in the use of technology in discovery, said Scott Charney, a principal at PricewaterhouseCoopers and former chief of the Justice Department’s Computer Crimes and Intellectual Property Section. Two-thirds of the respondents said that when notified of a suit, clients “rarely or never” took steps to preserve data. “There are two kinds of threats,” said Charney. “One is…where [hackers] attack systems. The other is…where you deploy technology and it spins out of control.” Because most e-mail is routed through and stored in company computers, it is subject to discovery. When their company is sued, he said, general counsel should notify computer personnel before data is overwritten. The survey said that the most requested electronic documents are e-mail. But 80 percent of the respondents said that their clients had no protocols for classifying data for retrieval when fulfilling discovery requests, while 60 percent said that clients had no idea electronic data could be subject to discovery in the first place. Charney warned that companies failing to address these issues could be subject to sanctions, or worse, if they are unable to comply with discovery requests simply because electronic data can not be located. “The important thing is that general counsel and outside counsel should be anticipating these issues rather than just relying on an emergency response,” Charney said.

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