Prepare for E-Discovery Before a Lawsuit Is Filed
The Federal Rules of Civil Procedure require producing not just paper, but all electronic documents and data for trial. Defendants and their counsel must preserve and provide electronically stored information, and a court can inflict sanctions if it finds that relevant electronic documents have not been preserved and produced in discovery.
The records management life cycle is the foundation of an effective e-discovery program. In the traditional management model, every paper or electronic document goes through five steps: creation by the individual; distribution to intended recipients; storage of the physical or electronic document; retention of the document based on an assessment of its significance and value; and preservation in a manner that allows the document to be retrieved and searched.
When it comes to the preservation of electronically stored information (ESI), the IT organization should be an integral part of any records management strategy. IT professionals must take an active role in the discovery process and educate counsel on the technological basics of data storage and retrieval. This can be done only through strategic planning for electronic evidence gathering. Creating a management program for ESI begins by identifying and interviewing everyone who can help identify core business functions and values, and evaluate the status of records and policies.
Best Practices and Procedures
Once a company creates a data management plan that assesses what exists, it should develop best practices and procedures for storing and accessing ESI. This involves preparing internal training materials and publicizing the ESI management plans to all personnel, so that everyone understands the importance and responsibility of proper ESI retention procedures.
An effective program creates a systematic approach that is invaluable once a lawsuit begins the e-discovery process. That approach will build a detailed e-discovery protocol for ESI; identify the key e-discovery issues in the dispute, the right persons to answer those issues and the way they generate electronic information; and create detailed knowledge about where the e-documents are archived, how the servers are structured and the documents types that must be produced.
E-mail is a perfect example of what to address. Most business e-mail messages include enough information to make them records that are subject to e-discovery. Preserving valuable e-mail messages is crucial, but the key is finding a way that doesn’t save every e-mail. Many companies temporarily store e-mails and require regular review by the people who generated them to decide which ones should be stored permanently, according to criteria established by management and legal counsel. Ideally, storage should be sorted by key categories, such as operational, financial, legal and human resources.
On the flip side is the problem of allowing employees to store informal business or personal ESI without making it part of the permanent archive. One solution is to require employees to purge their hard drives of such information on a weekly basis. Another approach is to limit how much data an employee can store in a year and require that all such data be stored on the main company server rather than the employee’s hard drive. Regular data-storage audits can identify employees who are not complying with these requirements.
The E-Discovery Process
The e-discovery process takes up where the preservation stage leaves off, requiring the identification and collection of ESI relevant to a case, and moving to the next step of processing, reviewing and analyzing that information so it can be produced in discovery. Two factors complicate the process. First is the huge volume of documents that ESI encompasses: One gigabyte of ESI can equal up to 75,000 hard-copy pages, and many lawsuits require e-discovery production of up to one terabyte of material: 500 million pages.
The second factor is the short time frame: The Rules of Civil Procedure allow only a brief window after a lawsuit is filed to identify, analyze and classify relevant electronic data before the parties must meet in a conference required by Rule 26 to discuss e-discovery issues. The Rule 26 conference must be held “as soon as practicable,” and at least 21 days before the scheduling conference, which is required within 120 days of filing a complaint.
Rule 26 permits the requesting party to ask for ESI production in specific formats, so participants should agree on the form in which the e-documents are provided: typically native, PDF or TIFF images, with WAV files used for voice records. The Rule 26 conference achieves its purpose when the parties identify all sources of ESI in their initial disclosures, and agree on logistical issues, such as accessibility, location and types of information, production formats and matters of privilege, as well as the scope of relevant information to exchange.
E-discovery can cost an organization millions of dollars, with lawyers sorting and reviewing ESI for trial. The cost can be reduced through software programs with search-and-retrieval algorithms that identify key terms and classify documents accordingly, but the real solution is to have an e-discovery process in place to manage your digital file cabinets before a lawsuit hits.
Being prepared can be a major advantage during litigation and settlement, and can save hundreds of thousands of dollars in discovery costs.
Jennifer Jackson Spencer, a trial lawyer and e-discovery expert, is a founding shareholder of Spencer Crain Cubbage Healy & McNamara, a litigation and business law firm based in Dallas.