IT experts, legal counsel and management must collaborate to clean the digital file cabinet
Damages and judgments make litigation costly -- but so too does the expense of rounding up all the information necessary for preparing a case. This process is called discovery, and in the past it meant going through boxes and cabinets of paper documents to cull the right ones. Since 2006, the Federal Rules of Civil Procedure require producing not just paper but all electronic documents and data for trial. Defendants and their counsel must carry out this duty to preserve and provide electronically stored information (ESI), and a court can inflict sanctions if it finds that relevant electronic documents have not been preserved and produced in discovery.
Personal digital assistants like the Blackberry, notebook and laptop computers, even cell phones with text messaging are all subject to data discovery requests. Managers, lawyers and IT professionals (whether in-house or outside vendors) must work together to create an in-depth understanding of a company’s electronic document trail. Such an effort is essential to prepare for an effective electronic discovery (e-discovery) effort before the company is hit with a lawsuit or needs to file one itself. The expansion of discovery for electronic data in effect creates a duty to manage the entire body of ESI, not merely what is easiest or most convenient to manage.
Strategic Planning for ESI Management
Several decades ago, if documents were physically destroyed, the fact of their existence likely could not be proven. Today, hitting the delete key does not prevent an electronic document from being preserved in a hard drive or backup system. And if the document is there, it must be produced in discovery. That means the information technology function should be an integral part of any company’s strategy. IT professionals must both take an active role in the discovery process and educate counsel to understand 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 with identifying and interviewing everyone from C-level executives to line personnel, who can help identify core business functions and values and evaluate the status of records and policies. Once a company creates a data management plan that assesses what exists, it must develop best practices and procedures for storing and accessing ESI. Part of the process is 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 electronic 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
- Create detailed knowledge about where the electronic documents are archived, how the servers are structured, and the documents types that must be produced.
Email is a perfect example of what to address. Most email messages sent and received within business organizations include enough information to make them business records that are subject to e-discovery. Preserving valuable email messages is crucial, but the key is finding a way that doesn’t save every single one without purging critical messages. Many companies temporarily store emails and require regular review by those who generated the emails to decide which ones should be stored permanently according to certain criteria established by management and legal counsel. Ideally storage should be sorted by key categories, such as operational, financial, legal and human resources. Waiting until litigation is anticipated is too late to properly manage document retention procedures in a cost-effective manner. A duty to preserve arises when litigation is reasonably anticipated, and a company cannot “clean its digital file cabinet” at that time.
Detailed E-Discovery Protocol
Early preparation is the foundation of a detailed e-discovery protocol when litigation hits. The protocol identifies the issues in the complaint, the key persons to answer those issues, and the way they generate electronic information -- laptops, home PCs, PDAs. Interviewing the key persons before the first meeting with opposing counsel is necessary to identify the required e-discovery. That first meeting is the Rule 26 Conference required by the Federal Rules of Civil Procedure (FRCP), and it must occur within 120 days of the filing of the lawsuit and must specifically discuss e-discovery issues.
Rule 26 permits the requesting party to ask for ESI production in specific formats, so in the Rule 26 conference, participants should agree on the form in which the electronic documents are provided -- native, PDF or TIFF images and WAV files for voice records. When the parties identify all sources of ESI in their initial disclosures, and agree on such logistical issues as accessibility, location and types of information, production formats and matters of privilege, as well as the scope of relevant information to exchange, the Rule 26 conference achieves its purpose. Having a detailed e-discovery protocol in hand and being fully prepared for the conference can save hundreds of thousands of dollars in discovery costs. After the conference, counsel for both sides will convey to the Judge their agreement on the form and extent of production.
Typically the initial discovery disclosures are produced 30 days after the Rule 26 Conference. A formal document production checklist and timeline can keep the production effort problem-free.
Having electronic documentation in hand by the 21-day mark allows for quality checks on the alignment of emails and files, the quality of images, the completeness of deletions for confidentiality (which should be made on hard copies before scanning so that they cannot be revealed electronically) and document labeling and numbering. Adhering to a production checklist allows counsel to identify and assign to each document a control number that is used to label every document page. There is excellent trial document management software available that can organize, search and display such information at the right moment during trial.
Cost Reduction for ESI Discovery
All of this effort is necessary because of 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 (1,000 gigabytes) of material. It can cost up to millions of dollars for lawyers to sort and review ESI for trial. The cost can be reduced through software programs with search and retrieval algorithms that search for 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.
Jennifer Jackson Spencer is a founding shareholder of Spencer Crain Cubbage Healy & McNamara pllc. She is an experienced trial lawyer who is highly regarded for her knowledge of e-discovery issues as the foundation of a commercial litigation practice that includes representation of national banks, mortgage companies, technology and pharmaceutical companies and industrial manufacturers. Spencer Crain, a litigation and business aw firm located in
