Our previous posting provided an overview of the typical ediscovery lifecyle and identified the need for an enterprise-wide approach to ediscovery. This posting will explore the explore some of issues relating to the ediscovery process steps in more detail and describe the characteristics of an enterprise-wide EDRM system for ediscovery.

Some Issues Relating to Ediscovery Process Steps

Legal Hold Put in Place: The producing party’s counsel will notify all appropriate company personnel of the existence of the claim, preservation letter and/or document request and advise personnel not to delete, discard or otherwise interfere with the integrity and availability of the requested documents pending resolution of the claim. This legal hold would override the normal deletion provisions under the company’s retention policy. Failure of the producing party to institute this legal hold after receiving notice of a claim may result in a charge of “spoliation” of evidence. This may lead to a court imposing sanctions on the producing party.

Prepare for Production: The counsel and/or paralegals for the producing party typically would identify those documents and records that were responsive to the document request. At this stage the producing party could create a file plan for the documents placed on legal hold and being prepared for possible production.

Court Proceedings: U.S. Federal Rules of Civil Procedure (FRCP) Rule 16 (c) empowers the court to issue orders controlling and scheduling discovery, including orders affecting disclosures and discovery. This could involve the issuance of protective orders requiring the requesting party to maintain the confidentiality of trade secret documents, barring the production of privileged documents or amending the scope of a document request.  At a FRCP Rule 16 pre-trial conference, the court usually would meet with the parties and work out a schedule for production of documents based on a discovery checklist. Also, several federal jurisdictions have promulgated local rules of practice and other guidelines concerning electronic discovery (e.g. D.N.J. Local Rule 26.1(d) [1]. These local rules would supplement the FRCP.

Review Against Production Response Plan: Counsel would at this stage review the steps taken to date to ensure that they have been in conformity with the enterprise policies for ediscovery, such as a “Litigation Response Plan[2]”. The Litigation Response Plan acts as a blueprint for the litigation response team and addresses topics such as (a) accounting for archived and non-archived information, all storage locations, backup protocols, and (b) chain of custody issues.

Use of Virtual Due Diligence Room: In cases where the documentation is voluminous, where the documents are widely dispersed geographically, where the documentation is in electronic format or where speed is essential, the parties may opt to use a secure extranet of the producing party whereby the requesting party’s personnel can access the extranet through a “portal” and review the produced documents online. Virtual data rooms are already used extensively for mergers and acquisition due diligence in the U.S[3] .

Characteristics of an Enterprise-Wide EDRM System for EDiscovery

The typical process steps involved in litigation and ediscovery illustrates the need for an enterprise-wide communication and collaboration portal that connects into the enterprise’s document and records management systems. This portal would facilitate the needed information-sharing and decision-making that supports an effective ediscovery program. It also could be utilized for the production of documents to opposing counsel through the use of extranet portals for “virtual discovery rooms”. The ideal enterprise-wide EDRM system would support policy management, providing administrators with the ability to set policies to manage the lifecycle of records from creation to destruction. Policies would also be created to move records from one storage media to another as they age. This may also be used for technology refresh to ensure that the records are always stored on current media so that they can be retrieved. Mapping this architecture against a process-based view of the company should help the company avoid expensive point solutions and duplication. The achievement of an enterprise-wide EDRM solution also would help the company better understand the true cost of recovering data and records from inaccessible media, so as to allow the company to support a request to the court to shift document production costs to the other party.

___________________________________________________

[1] See http://www.klgates.com/files/upload/eDAT_rules_D_N_J_LCivR26_1.pdf.
[2] See, e.g., http://www.law.com/jsp/legaltechnology/roadmapArticle.jsp?id=1158014995172&hubpage=Identification
[3] See, e.g., http://en.wikipedia.org/wiki/Data_room.

___________________________________________________

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).