Page 102 - 2019 - Leaders in Legal Business (q)
P. 102
Information Management
Information management is an ongoing program that actually precedes litigation, but it is
included in the EDRM because a client’s ability to successfully navigate the e-discovery process
relies in part on its information management practices. The more information a client has, the
greater the risk that information poses, particularly when the client does not understand why it
creates, uses, and saves that information.
Ideally an organization’s information policy is developed with the input of representatives
from various departments, including legal, records, compliance, human resources, and key
business units that will share insight into the potential risks and give input on retention guidelines
for each category of data. The goal is to preserve data only as long as it is needed for operational
or legal reasons.
One important caveat: Establishing an information management program and/or disposing
of records pursuant to the retention program are tasks that should be done in the ordinary course
of business and not in connection with specific litigation. Disposing of data in anticipation of or at
the onset of litigation is a red flag to courts and opposing counsel, increasing the risk of potential
sanctions.
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.
87
Information management is an ongoing program that actually precedes litigation, but it is
included in the EDRM because a client’s ability to successfully navigate the e-discovery process
relies in part on its information management practices. The more information a client has, the
greater the risk that information poses, particularly when the client does not understand why it
creates, uses, and saves that information.
Ideally an organization’s information policy is developed with the input of representatives
from various departments, including legal, records, compliance, human resources, and key
business units that will share insight into the potential risks and give input on retention guidelines
for each category of data. The goal is to preserve data only as long as it is needed for operational
or legal reasons.
One important caveat: Establishing an information management program and/or disposing
of records pursuant to the retention program are tasks that should be done in the ordinary course
of business and not in connection with specific litigation. Disposing of data in anticipation of or at
the onset of litigation is a red flag to courts and opposing counsel, increasing the risk of potential
sanctions.
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.
87
