In order to mitigate that risk, legal counsel must fully understand the company's data practices and indeed must have some control over them. Counsel must be aware of the company's retention schedules and rules, including a corporate classification schema that identifies the major classes of information the company views as records. According to Paknad, there should be specific retention periods for information in each of those classes.

For instance, among financial services companies, where instant messaging is considered relevant, companies are already sampling IMs on a daily basis and matching text against a lexicon of keywords. Tape cataloging is another key ingredient in preparing IM and e-mail for retention and data discovery during the pretrial conference. Cataloging should record the dates of all information on the tape, including the server it came from and the type of data it is, says Francis Lambert, senior compliance advisor at Zantaz, a content archiving company.

In preparing for the pretrial conference, many larger companies are deploying full-time "discovery response teams" made up of litigation attorneys and IT technicians. These teams are tasked with becoming specialists in collecting and preserving data and in learning how best to go about the process of retention, retrieval, and deletion. In the largest companies, these teams are often broken out by category, such as e-mail IT teams or server IT teams.

When a trained discovery response team is notified of possible litigation, it must swing into action immediately. For instance, a key component of complying with the rule changes in 26 (f) is determining which data needs to be rescued from any automatic deletion process that may be about to destroy it. This is known as a "legal hold."

From the time a company reasonably anticipates litigation or receives a legal request for data from another party, IT and legal must be able to identify as quickly as possible the systems and data sources where relevant information may be about to be deleted -- and they must prevent such deletion.