Published in Oil & Gas Executive, Volume 2, Number 1, 1999, pages 42-48. A New Way of Thinking It is clear that electronic discovery is not only here to stay but also will expand significantly in years to come. The Year 2000 litigation problem is just starting to show itself in courts, and many believe that most such litigation will involve some sort of electronic discovery. To gain the benefits that come from being prepared for electronic discovery, corporate executives must develop a new way of thinking about electronic data and the systems on which these data reside. For years, advances in electronic processing have been introduced into the organization with no thought given to the potential risk associated with them. For example, many oil and gas companies are introducing intranets into their corporate infrastructure. An intranet is an electronic communication system that allows information to be shared internally within an organization. While seen as an advance in information sharing, many organizations are now finding that uncontrolled introduction of such systems can create litigation liability. One company recently lost the trade-secret status associated with its library of oil and gas formulas because the library was placed on an intranet that allowed thousands of nonemployees access to it. Other companies have found that old data needed for today's litigation cannot be read or processed with today's computer systems. Seismic and drilling data stored on old magnetic tapes (often by use of proprietary, homemade software) is useless unless the old tape-drive hardware has been kept and properly maintained and copies of the software application have been kept along with instruction manuals, passwords, and the like. As computer systems become more complicated and as upstream and downstream operations rely more and more on electronically stored data, the associated litigation risk will continue to grow. Today's oil and gas executive must realize that the shift in discovery from paper to electronic records requires recognition within the organization, a plan to deal with it, and a new way of thinking about risk management. Organizations that do not have the ability to identify, locate, retrieve, review, preserve, and produce electronic data in a proper, timely, and cost-efficient manner will find themselves at a strategic disadvantage.
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