One of the challenges facing many companies today is how to handle the production of electronic documents in the course of litigation discovery. For companies embroiled in litigation, electronic document records management can be an increasingly daunting and expensive task[1] . It is black letter law that computerized data is discoverable in litigation if relevant and it has been estimated that more than 93% of all information generated is generated in digital form[2] . Computerized data can reside in a variety of structured and unstructured formats (e.g., email and instant messages) and can be found in both accessible and inaccessible media. The cost of legal discovery can become a major expense if an enterprise-wide electronic documents and records management (EDRM) approach is not taken to the problem. The ideal enterprise-wide EDRM platform for litigation discovery would implement best practice business processes that conform to statutory, regulatory and case law guidelines.  It also could be mapped against the business processes of the enterprise, taking into account the process steps of a typical legal discovery lifecycle.

EDiscovery Lifecycle

There are five distinct processes within the typical Legal Discovery lifecycle:

1. Analyze Claim - legal counsel analyzes either an actual claim (e.g., a summons and complaint served on the company) or the facts surrounding a situation that is reasonably likely to result in litigation, thus giving rise to the need to preserve documents for possible future production in a litigation matter. The party intending to raise the claim will (a) determine the scope of the claim, the documents that would be relevant to the disposition of the claim, and determine the likely media and storage locations of the needed documents, utilizing the services of a forensic expert, if necessary, (b) prepare and send to the other party a complaint, letter or other communication to the other party notifying that party of the existence of the claim and requesting the preservation of documents that would be of relevance to the resolution of the claim, and (c) prepare and send a formal document request to the other party.

2. Review Document Request - legal counsel and non-legal personnel review a request to produce documents served on the company by the other party to the litigation in order (a) to determine its scope and the types of documents that would be encompassed by the document request, (b) determine the necessity of seeking court orders (e.g., protective orders and orders to shift all of part of the cost of production to the requesting party for documents that are not easily accessible).

3. Put Legal Hold in Place: legal counsel of producing party (a) advises relevant company personnel of the existence of a litigation matter and of the necessity to maintain pertinent documents relating to the subject matter of the litigation pending resolution of the litigation, overriding otherwise applicable retention periods, and (b) monitors compliance by company personnel with legal hold restrictions.

4. Prepare for Document Production: legal counsel and non-legal personnel (a) identify the types and medial locations of documents that would be responsive to the document request, utilizing the services of experts as needed, (b) eliminate or redact documents and text that are deemed to be exempt from production due to attorney-client privilege or other privileges, (c) map the steps being undertaken against any applicable company production response plan, (d) undertake any necessary court proceedings (e.g., motions for protective orders)

5. Produce Documents Pursuant to Document Request: legal counsel (e.g., paralegals, in-house counsel and associates of outside law firms representing company) and non-legal personnel of the responding party (a) organize the electronic documents into groups that map against the sections of the relevant document request, (b) separately identify in a response to the document request those portions of the document request that require further explanation (e.g., documents are being produced for only a portion of the time period indicated or certain documents have been omitted because they are protected by privilege), (c) arrange for supervisory legal counsel to review and authorize the final proposed document production (including proposed redactions and privileged documents), and (d) deliver the electronic documents to the requesting party. Legal counsel for the requesting party (a) reviews the document production in order to determine the adequacy of the production, and (b) initiates court proceedings (e.g., motion to compel production) if the documents produced are not responsive to the document request.

Part II of this posting will examine a few issues related to the above five processes and a few key characteristics of an enterprise-wide EDRM platform.

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[1] “For some, costs have skyrocketed; one company reported processing and hosting expenditures leaping from under $100,000 three years ago to over $10 million last year.”: see Socha & Gelbman, “EDD Showcase: Strange Times”, located at http://www.lawtechnews.com/r5/showkiosk.asp?listing_id=3296867.
[2] See “How Much Information”, located at http://www2.sims.berkeley.edu/research/projects/how-much-info.
 
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Jeff Jinnett is Governance, Risk Management & Compliance Industry Market Development Manager, US Financial Services Group, for Microsoft Corporation.  Mr. Jinnett is a former partner of the international law firm of LeBoeuf, Lamb, Greene & MacRae, LLP (now Dewey & LeBoeuf) and has experience in advising Fortune 500 companieis in the financial services industry on the use of technology to support corporate governance, risk management and compliance programs.  Mr. Jinnett has testified as an expert before committees of the US Senate on issues relating to the intersectiion of law and technology.  He is a member of ARMA (a records and information management professional association) and the Society of Corporate Compliance & Ethics (SSCE).