Understanding How the CIO Looks at eDiscovery

Jerry O. Smith
February 28, 2012 — 1,613 views  
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eDiscovery is the process of the discovery and sharing out of intangible evidence. Said evidence may be an internet writing or process, email, IM, database, blog or similar piece; it is characterized by its lack of solidity as existence. It simply is, and its only evidentiary value is as an abstract, since it has a "state of being" only in electronic form. There are also legal precedents (established in Zubulake v. UBS Warburg) that mandate that this intransient material, even if it no longer exists in any form (a hard drive with the information destroyed, for example), may still be used as viable evidence if the court determines the probability of its existence.

If, for example, an embarrassing letter from an aide to a Senator were to compromise the Congressman's standing, his case could move forward even if he destroyed the letter; the court could be satisfied of the probability of its former existence. Said Congressman could be prosecuted based on invisible evidence that has no existence beyond its own probability.

This becomes tricky for the government CIO (chief information officer) of a government agency. He deals in the legality and viability of his agency's intangibles perhaps more than anyone else in that his field. A CEO of a business may also be its electronics officer, and determine the form in which data is to be distributed. However, a government CIO, although a commanding officer or ranking official, more than likely must report to a higher authority (all the way up to the President).

Given the necessary secrecy of much of an administration's dealings, and the delicate nature of any evidence that may be admitted if a court case should arise in regard to an agency's activities, this information officer must, in effect, obey two mandates-one from his higher-ups and one from the courts. This creates a Scylla-and-Charybdis scenario for the officer, in that he is caught between the need to turn over "eDiscovered" documents in a legal case, and the need to maintain secrecy for the current administration's inner workings.

More often the not, the government CIO of the government agency will obey the administrative mandate, and the evidence may become "unavailable." This does not mean the case is over (the court can in effect re-create the evidence as probably existing), but it does give an understanding of an information officer's special dilemma, the higher up in political circles he finds himself.

The government CIO has a unique perspective on eDiscovery; learn more about this important figure deals with new discovery rules on our web site.



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Jerry O. Smith