Eight ways to Prepare for E-discovery in a pinch
December 8th, 2008 Filed Under E-discovery, legal news
LTN gives eight ways to prepare for e-discovery when you are under the gun.
1. Apply the five Ws of journalism (who, what, when, where, and why) to get a handle on your core preservation duties. Immediately list the people, events, time intervals, business units, records, and communications central to the case.
a. List apparent key players (don’t forget assistants who, for example, handle the boss’ e-mail, and significant third parties over whom your client has a right of direction or control).
b. Hone in on what happened — both from your perspective and theirs — and posit what ESI sheds light either way, or tends to explain or challenge the key players’ actions and attitudes.
c. Decide what dates and time periods are relevant for preservation. Is there a continuing preservation obligation going forward?
d. Determine which business units, facilities, systems, and devices most likely hold relevant ESI.
Your lists will change over time. But a focused, thoughtful, and well-documented effort that is diligently implemented will be more defensible, less costly, and invariably more effective than a scattershot approach. Don’t delay. It needn’t be flawless right now — reasonable will do.
2. Focus on the fragile first. What potentially relevant ESI has the shortest shelf life and requires quickest action to preserve while it’s still reasonably accessible? Voicemail, web mail and text messaging, computers requiring forensic examination, web content, and surveillance video are examples of ESI that tend to be rapidly discarded or overwritten. Grabbing e-mail of key custodians before it migrates to backup media can save a bundle and accelerate search and processing.
3. Protect employees from themselves. People who wouldn’t dream of shredding a paper record will purge ESI with nary a thought. In the blink of an eye, history will be reinvented as employees delete overly candid e-mail and commingled personal communications. The results are often catastrophic and always costly. Assess whether those entrusted with preservation can be trusted to perform and don’t rely on custodial preservation alone when its failure is reasonably foreseeable.
4. Holds should be instructional, not merely aspirational. Too many lawyers draft legal hold instructions designed to protect lawyers. Broadly disseminating a form hold directive saying “keep everything” isn’t helpful and will come back to haunt you at deposition. “I got the memo,” they say, “but I didn’t know where to start.”
Tell custodians what to do and how to do it. Give examples that inform and deadlines that demand action. Get management buy-in for the time needed to comply. Better a handful of key players take the hold directive seriously than dozens or hundreds of minor players wink at it.
5. Boots on the ground. Good doctors don’t diagnose over the phone. Likewise, good lawyers meet key players and get a firsthand sense of how they operate. Seek out the people who manage the systems that hold the evidence and learn the “who, what, when, where, and why” of your client’s ESI face-to-face. It’s not just helpful — it’s what courts expect.
6. Build the data map, including local collections and databases. Federal practice requires identification of potentially relevant ESI, but it’s a best practice everywhere. That goes for the lessaccessible stuff, too. Courts won’t accept, “We don’t know what we have or where it is,” so be ready to identify potentially relevant ESI that you will and won’t explore or produce. Data stored off servers or on databases pose special challenges that are made more difficult by turning a blind eye to its existence. Don’t fall prey to, “If we don’t tell them we have it, they won’t ask for it.”
7. Consider how you’ll collect, store, search, review and produce ESI. Making sense of ESI, controlling costs, and minimizing frustrating “do-overs” rides on how you choose to process and produce information. So add an “H” — how — to those five Ws, and ponder your options for how the data gets from here to there.
8. Engage the other side. Even warring nations cease fire to carry off fallen comrades. You don’t have to like or trust the opposition but you have to be straight with them if you want to stay out of trouble in e-discovery. Tell the other side what you’re doing and what you’re unwilling to do. Collaborate anywhere you can. Lawyers overdiscover cases more from ignorance and mistrust than guile or greed; but, even when you face someone gaming the system, your documented candor and good faith effort to cooperate will serve you well in court.
Attorney barred in the District of Columbia and California currently looking for opportunities in the private and government sectors. Specializes in ediscovery/litigation efficiency project management but can do straight litigation or litigation management. Feel free to contact me with opportunities at info@sentrycg.com
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