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Government Tracking Electronic Communications

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A press release from FaceTime Communications stopped me cold today.

They were promoting their ability to archive, track, and manage electronic communications such as emails, instant messages, and web conferences to comply with new provisions of the Federal Rules of Civil Procedure that went into effect this month.

This is all new information to me, so I set out to do some research. The Federal Rules of Civil Procedure apparently govern the way that federal courts conduct civil (non-criminal) trials. They try to make sure that similar cases are treated similarly by the courts. Procedures cover what information is received by the judge or jury, how that information is to be presented, and by what standards of proof the information will be judged (thank you to Cornell Law School’s Wex legal learning site!).

The new amendments referenced in FaceTime’s release apply to Federal Rules of Civil Procedure, Rule 26: General Provisions Governing Discovery; Duty of Disclosure. In short, companies have an obligation to proactively provide any and all documents in their possession that could be germane to a court case. The new amendments clarify that “documents” include electronic communications. But in trying to read through the legal gobbledygook of the rule text, I couldn’t find anything that explicitly included or excluded webcasts and webinars.

I found a nice article by Jennifer Schiff from last month that tried to lay out the big issues in more friendly terminology. Unfortunately Ms. Schiff concentrates on email (which is obviously the big ticket item as far as most corporate communications are concerned).

I think it is thoroughly possible for the content of a public or private webcast, web conference, or webinar to fall under the discovery provisions of the rule. This is particularly true if you made a recording of the web conference at any time. Then getting rid of the recording could be seen as an attempt to avoid discovery in a case where it was relevant. This brings up interesting implications for producers of web conferences.

First, if you are using a vendor that requires recordings to be stored on their servers and can’t provide a permanent file to you, you may be in trouble. You are supposed to keep these electronic documents available and accessible if called upon in a case.

Second, the storage space requirements for recorded webinars are massively greater than storing a bunch of text communications such as email or instant message logs. If your company does a lot of webcasts over time, it may be more cost effective to hire a service to create hardcopy transcripts of the audio track and just save those. From my reading of the rule, transcripts of vocal communications are acceptable.

I am no lawyer, and nothing in this blog posting should be taken as legal advice. I’m still fuzzy on the practical details myself. But if you are a moderately large company that faces the common problem of dealing with civil lawsuits and you produce webcasts, you’d better ask your corporate attorney what s/he thinks!

PS: Think the problem is academic? Check out this astonishing statistic from Ms. Schiff’s article:

    According to a recent report by the Business Performance Management Forum and AXS-One Inc., 36.4 percent of the senior executives and subject matter experts interviewed said their companies had no technologies or policies in place to manage a legal discovery order involving electronic records. Even more troubling, 33 percent said they had no corporate policy in place covering electronic records management in general – and 20 percent didn’t know if they even had a policy.

    Here’s another troubling set of statistics: an October 2005 study by law firm Fulbright & Jaworski revealed that companies with at least $1 billion in annual revenue are engaged in an average of 147 lawsuits simultaneously, while companies with average revenues under $1 billion were juggling 37 lawsuits at any given time.

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With a background in software development and marketing, Ken has been producing and delivering business webinars since 1999. His background in public speaking, radio, stage acting, and training has given him a unique perspective on what it takes to create a compelling and effective presentation. Currently Ken offers consulting services through his company Webinar Success (www.wsuccess.com).

Government Tracking Electronic Communications
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