Page 83 - MASTER COPY LEADERS BOOK 9editedJKK (24)_Neat
P. 83
Leaders in Legal Business
Identification
Once litigation (or an investigation) actually ensues, the first phase of e-discovery is identification of
potentially relevant information. Part of this process is working with the client — particularly its legal team and
IT personnel — to determine the scope and budget for the project and to learn about the client’s systems.
It is important to identify custodians who have potentially relevant information, narrow the range of dates
applicable to the litigation, and determine where relevant information might be located. Once these pieces of
information are assembled, counsel can more accurately estimate the volume of potentially relevant data, create
an e-discovery budget, and assess any potential risks.
Organizations that have regular litigation may find it helpful to construct a map identifying types and locations
of data that may be potentially relevant to litigation or an investigation. A comprehensive data map can serve as
a starting point for cost-effective, defensible discovery responses and will avoid the time and expense of
duplicative preliminary legwork in future litigation. The most useful data maps include the following information:
the subject matter and relevance of information;
the primary data sources, location, and accessibility of information;
the status of the system (e.g., when it was commissioned, decommissioned, retired, or upgraded);
the person or persons responsible for maintaining the systems and/or data; and
retention dates.
Preservation
Preservation of potentially relevant evidence is the next phase of the e-discovery process. The duty to
preserve typically arises as soon as the party anticipates litigation or should reasonably anticipate it. During the
preservation stage, clients must protect their data from intentional or inadvertent deletion, destruction, or
modification.
Parties that fail to uphold the duty to preserve face the possibility of serious sanctions for the loss of
evidence, which is called “spoliation.” The severity of sanctions depends on several factors, including the
prejudice to the opposing party as well as the steps the producing party took to preserve the information. There is
a continuum of sanctions a court may impose, ranging from requiring parties to redo discovery, imposing
monetary sanctions, and issuing an adverse inference instruction, to making other dispositive rulings, which can
include dismissal. Courts have also sanctioned counsel who fail to take affirmative steps to ensure their clients
are preserving data.
Three steps are critical during the preservation stage:
1) The first step is to issue a litigation hold to all custodians of potentially relevant documents. The
hold should also be sent to personnel from IT and the records departments, notifying them to
suspend any automatic deletion of data (which is common in email systems, for example).
Sending a preservation notice is not enough to meet counsel’s duty, however; counsel must ensure
that recipients understood the notice and plan to comply with it. Throughout the litigation,
reminders of the ongoing duty to preserve should be sent to all custodians, and counsel should
update the hold if necessary. Furthermore, lawyers should follow up with custodians as well as
IT and records, and monitor their adherence to the hold.
2) The second step is to protect the ESI either by collecting it or otherwise sequestering it to prevent
its loss.
3) The final step is to release the hold at the conclusion of the matter and reinstate the normal records
retention schedule.
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Identification
Once litigation (or an investigation) actually ensues, the first phase of e-discovery is identification of
potentially relevant information. Part of this process is working with the client — particularly its legal team and
IT personnel — to determine the scope and budget for the project and to learn about the client’s systems.
It is important to identify custodians who have potentially relevant information, narrow the range of dates
applicable to the litigation, and determine where relevant information might be located. Once these pieces of
information are assembled, counsel can more accurately estimate the volume of potentially relevant data, create
an e-discovery budget, and assess any potential risks.
Organizations that have regular litigation may find it helpful to construct a map identifying types and locations
of data that may be potentially relevant to litigation or an investigation. A comprehensive data map can serve as
a starting point for cost-effective, defensible discovery responses and will avoid the time and expense of
duplicative preliminary legwork in future litigation. The most useful data maps include the following information:
the subject matter and relevance of information;
the primary data sources, location, and accessibility of information;
the status of the system (e.g., when it was commissioned, decommissioned, retired, or upgraded);
the person or persons responsible for maintaining the systems and/or data; and
retention dates.
Preservation
Preservation of potentially relevant evidence is the next phase of the e-discovery process. The duty to
preserve typically arises as soon as the party anticipates litigation or should reasonably anticipate it. During the
preservation stage, clients must protect their data from intentional or inadvertent deletion, destruction, or
modification.
Parties that fail to uphold the duty to preserve face the possibility of serious sanctions for the loss of
evidence, which is called “spoliation.” The severity of sanctions depends on several factors, including the
prejudice to the opposing party as well as the steps the producing party took to preserve the information. There is
a continuum of sanctions a court may impose, ranging from requiring parties to redo discovery, imposing
monetary sanctions, and issuing an adverse inference instruction, to making other dispositive rulings, which can
include dismissal. Courts have also sanctioned counsel who fail to take affirmative steps to ensure their clients
are preserving data.
Three steps are critical during the preservation stage:
1) The first step is to issue a litigation hold to all custodians of potentially relevant documents. The
hold should also be sent to personnel from IT and the records departments, notifying them to
suspend any automatic deletion of data (which is common in email systems, for example).
Sending a preservation notice is not enough to meet counsel’s duty, however; counsel must ensure
that recipients understood the notice and plan to comply with it. Throughout the litigation,
reminders of the ongoing duty to preserve should be sent to all custodians, and counsel should
update the hold if necessary. Furthermore, lawyers should follow up with custodians as well as
IT and records, and monitor their adherence to the hold.
2) The second step is to protect the ESI either by collecting it or otherwise sequestering it to prevent
its loss.
3) The final step is to release the hold at the conclusion of the matter and reinstate the normal records
retention schedule.
76
