Introduction: This is the first in a series of short informational pieces relating to one of the hottest topics in litigation over the past five years - electronic discovery. The purpose of these articles is to provide your business entity with some guidelines on how to most efficiently deal with electronic discovery. The articles will be emailed regularly over the next few months.
The Need for an ESI-Discovery Team
Records management programs are fundamental tools in addressing the creation, retention and disposition of records, including Electronically Stored Information (ESI). This article assumes that your business has adopted such a program. If it has not done so, a program should be implemented immediately.
Computerized data have become commonplace in litigation. The sheer volume of such data, when compared with conventional paper documentation, can be staggering. Large corporate computer networks create backup data measured in terabytes, or 1,000,000 megabytes; each terabyte represents the equivalent of 500 billion typewritten pages of plain text. Digital or electronic information can be stored in any of the following: mainframe computers, network servers, personal computers, hand-held devices, automobiles, or household appliances; or it can be accessible via the Internet, from private networks, or from third parties. Any litigation discovery plan must address issues relating to such information, including its location, preservation, retrieval, inspection, form of production and use at trial.
There is a very strong chance that your business will be called on to respond to a request for production of ESI. Such production requests can emanate from governmental investigations, litigation in which the company is a party or subpoenas from third-party litigation. Before ESI can be produced, it must be found (hopefully cost effectively).
Preparation is the key to an effective and efficient response to ESI discovery and organization is the key to preparation. If your business takes the initiative to form an ESI discovery response team before you are faced with a subpoena or a request for production of documents, you will reap significant benefits in reduced costs and reduced disruptions to your operations.
Who Should Be Part of the Team? Manager and Coaches
Developing and implementing an effective ESI response program is a task that requires a team of professionals who fully understand the organization and the types of records created by the organization. ESI discovery involves aspects of administration, legal, technological (IT) and records retention procedures and policies. Thus, any complete ESI discovery team must include people from each of these areas in order to make sure there is an informed understanding of the intersection between corporate information systems and the prevailing legal requirements. Some businesses have found it preferable to use outside consultants to develop an ESI Response Program rather than to develop it in-house. Although there are e-discovery services designed to help companies with electronic record keeping, any such program should include consultation with outside litigation counsel.
- Senior Management/Operations - This person will represent the business side of the discussion. For example, someone must address the budget considerations and cost analysis of whatever program is established. Another important consideration will be the impact on operations and productivity of the ESI discovery plan. There are many other business concerns that would be clear to this person, but not necessarily to others.
- Representative of the General Counsel's Office or Outside Counsel - This person will bring knowledge of the legal considerations to the group. Things such as "litigation holds," spoliation of evidence, and privilege issues must be understood and addressed when formulating the plan. This cannot be properly done without a lawyer.
- Representative of the Information Technology Department - It should be obvious that a person who is familiar with the types of ESI the organization creates and receives, knows where the ESI is stored and how to locate it, and understands the technological capabilities of the organization, needs to be part of the team that develops an ESI Response Program.
- Representative of the Records Department - This person implements and monitors the policies and procedures, trains employees and assists in complying with document preservation and destruction. All of these functions are implicated in records discovery. This person's knowledge will be particularly important in adopting and carrying out "litigation holds", i.e. suspension of the destruction of records that are relevant to potential litigation.
- Electronic Discovery Director - Some very large corporations, such as Pfizer, have established the position of Electronic Discovery Director; however, it is only in the biggest businesses that are continuously involved in litigation where such a person would be cost effective.
Perhaps the most important consideration in forming the team is the determination of the leader of the group - the "spokesperson." In all likelihood, the "spokesperson" will be called on to explain the company's ESI-Discovery policies and procedures in some forum - either in a litigation discovery deposition or in a court hearing - relating to the adequacy of the company's actions. Since it is never a good idea to have a company lawyer be a witness in any legal proceeding, the person should come from one of the other departments. Obviously, the person selected should possess the qualities of a good witness: well-spoken, composed, professional, presentable, etc.
In the next Legal Watch: Preparing for E-Discovery newsletter, we will walk you through developing your ESI Response Program, highlighting what questions need to be asked.
Resource Used for This Legal Watch
- Manual for Complex Litigation § 11.446, Discover of Computerized Data, (4th Ed. 2004)
For more information or questions regarding E-Discovery and the Rules for Electronically Stored Information Management, contact Michael R. Palumbo at 602.262.5931 or email@example.com.