eDiscovery, FRCP and call recording


Electronic records discovery is a major burden that has been placed squarely on all businesses. Through the Federal Rules of Civil Procedure (FRCP), businesses of any size are required to provide all electronic records related to a suit or face draconian sanctions as opined by John Bace, research vice president at Gartner, Inc. (reference: http://www.channelprosmb.com/article/16270/E-Discovery-Is-for-SMBs-Too/). If a business cannot produce the requested documentation its only hope to avoid penalties is to show that it has good document retention policies in place and that they were followed in a routine, good-faith manner. Good luck to you trying to make that case as I imagine the standards being vague and interpreted differently across judges and jurisdictions.
Call recording seems to be a sticky wicket here in that if you have electronic recordings of telephone calls you may be required to share them during proceedings. I agree, if you are concerned that your business is in the wrong this can be a threat.
I see this entirely from the other perspective, however, if you run a tight ship.
Do you experience situations where the person on the other end of the phone conversation does not come through on their commitments? Do you sometimes put in writing your commitments as a follow up email, which may demonstrate you as responsible with no documentation of the other party's responsibilities? I know that our business is asked to be in this position often enough to make me nervous.
Sure, from time to time I listen to a call and cringe. Rarely is it to do with a potentially litigious situation. More routinely, someone simply did not go above and beyond to elate a customer. If it comes to e-discovery as we prepare for a suit, I'll risk that a customer service call was not us at our best in order to protect us from unfulfilled promises by the other party.
What about you?
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