Six Keys to E-Discovery Compliance
Our Lora Bentley lists the key issues you must address when planning an e-Discovery strategy.
Shortly after I came to IT Business Edge, the Federal Rules of Civil Procedure were amended to include specific instructions regarding the discovery of electronically stored information, or ESI. Because I was new to the technology beat, I had no idea then just how much time I would spend parsing these rules and talking to experts in the field about how best to accomplish their goals.
For instance, InBoxer CEO Rick Matus told me in October 2007:
The Amendments to the FRCP can be summarized in 19 words: "If electronic evidence is stored anywhere in your organization, you must produce it accurately and within a strict timetable."
And as recently as a month ago, Recommind's Craig Carpenter wrote regarding the congressional investigation into what and when Toyota knew of unsafe auto parts:
Because the aforementioned House [Oversight and Government Reform] Committee has subpoena power and can use any documentation produced by Toyota to the National Highway Transportation Safety Administration ... the situation has morphed from a PR issue to a major, "bet the business" investigation.
And that's only two of them. Culling through all the blog posts and interviews, however, I noticed several tips came up more than once. Since they have stood the test of time so far, I thought I'd share.
- ESI is more than just e-mail and other office "documents." YouTube videos have been used as evidence, as have Facebook and Twitter posts. Voice mail, calendar and journal entries, and instant messages also fit the bill. And as Kentucky attorneys Michael Losavio and Jennifer Hans once pointed out, ESI can be stored just about anywhere - including such places as hard drives, RAM, cell phones, PDAs, flash or thumb drives, and even MP3 players.
- How you deal with ESI can make or break your case. It's a lesson California-based outdoor furniture supplier Creative Pipe had to learn the hard way. After the company allowed opposing counsel to use an untested keyword search tool that unearthed 165 documents of privileged data during the discovery process, the court determined Creative Pipe had waived privilege on those documents because it had not taken care to protect them. In the end, Creative Pipe's opponent was able to use any of those 165 documents as evidence against Creative Pipe.
- The best approach to ESI is a proactive one. If you want to avoid errors like those made by Creative Pipe and others who have been in the news the past few years, it is not wise to put ESI archiving/e-discovery policies on the back burner. Figure out where all of your ESI is, and how or whether it can be quickly accessed, then address how any new ESI that comes into the system will be managed. Waiting until you have an actual e-discovery request or regulatory audit notice in hand before deciding what to do is just asking for trouble.
- Best practices are crucial. Document-retention policies and procedures that take litigation holds into account should always be in place and enforced. Otherwise you risk sanctions - or worse - for failing to properly fulfill discovery requests. And, especially for companies that do business on a global scale, Huron Consulting Group's Rob Hichens says, "Developing best practices is the key to navigating the complexities of global e-discovery matters."
- Neither IT nor legal should tackle e-discovery alone. That's why it's important to teach the departments how to work together to accomplish e-discovery goals. Some companies are looking to a new breed of IT professional, who reports up through the general counsel's office, to lead the efforts. Others take a team approach, with representatives from each group providing input at the planning and implementation stages.
- The right technology can make all the difference. Like any software or service, e-discovery solutions come in a variety of shapes and sizes. Whether it's an appliance, a hosted solution, or a custom, site-specific implementation, you'll have to shop around to find the one that best meets your needs.