Electronic Evidence
By Paul R. Rice
THE PRACTICAL SIDE OF E-DISCOVERY
To apply the rules of electronic discovery, counsel must acquire a basic understanding of the electronically stored information (ESI) potentially at issue in a case and
how that information can be preserved, collected, and produced. Organizations that actively prepare for electronic discovery will have strategic advantages over their
less-prepared opponents and will ultimately reduce the cost and risk associated with e-discovery. A comprehensive review of an organization’s readiness for electronic
discovery may suggest actions that should be taken in the early stages of litigation to provide protection to the company.
In building an effective e-discovery response program, an organization should consider the steps summarized below. For greater detail, especially in the area of
preservation and retention, refer to Chapter One of Electronic Evidence, Second Edition.
Build an E-discovery Team
A successful e-discovery response program requires an appropriate team with clear delineation of roles. The typical team should include members from (i) the legal
department, (ii) information technology, and (iii) records management. Understand and Improve Information Technology Architecture
An appropriate e-discovery response program should address each element of its architecture
during the e-discovery process, including the following systems: (i) e-mail, (ii) unstructured data storage (e.g., NT servers), (iii) document management systems, (iv) Web
environment, (v) databases, and (vi) applications. Develop a Preservation Process
With the discoverability of electronically stored information now firmly established, counsel must take steps to identify and preserve potentially relevant ESI. Federal
Rule 26(f), in fact, requires the parties to address the issue of preservation in the context of the meet-and-confer process. This is the first time that the term
“preservation” appears in Federal Rules. Develop a Retention Plan
The easiest way to reduce the risk of sanctions is to design, implement, and enforce a preservation plan to ensure the appropriate preservation of records in the context
of actual, or reasonably anticipated, litigation. Issue Instructions to Custodians to Preserve Potentially Relevant Records
The obligation to retain discoverable materials is an affirmative one; it requires that the agency or corporate officers having notice of discovery obligations communicate
those obligations to employees in possession of discoverable materials. Design and Implement E-discovery Guidelines
The best way to ensure a defensible and cost-efficient process that can be applied across all of a company’s cases is to have a set of written guidelines that
address each step in the ESI process. Identify a Preferred Vendor Network
E-discovery vendors may be necessary to assist in collecting, processing, hosting, review, and production. Consider Acquiring or Licensing Appropriate Tools
A wide variety of tools are available to assist corporations in the e-discovery process, from archivers to assist in preservation to automated search and retrieval
technologies, to litigation support tools for managing and reviewing the production.
Sponsoring Entity:
Section of Litigation
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