Key Points of an Electronic Discovery - Report Example

Running head: E-discovery In the process of collection, review and production of electronic information, e-discovery poses new opportunities and challenges for the courts, attorneys and their clients as well as technical advisory. Electronically stored information differs from paper information due to its intangible form, persistence, volume, transience and presence of metadata. This paper highlights the key points of an electronic discovery response plan and associated procedures suitable for a quick and proper response to a discovery request for electronically held information. Focusing on e-discovery, management and retention of electronic records, it demonstrates how a one hundred-person company can respond to an e-discovery request for email and files held on both servers and individual employee workstations. Introduction E-discovery is an abbreviation term for electronic discovery and refers to parties’ obligation to a lawsuit to exchange electronically stored information, that is, documents existing in electronic form only. We can also refer e-discovery as the pretrial legal process that helps describe the technique by which parties will obtain and salvage or retrieve information that is electronically stored (Kane, 2009). In the court of law, electronically stored information share a footing with paper documents following the December 2006 amendments to the Federal rules of civil procedure, which now require civil litigants to conserve and produce electronic evidence. Any kind of electronic data can now serve as evidence and this may cover devices or data including texts, voice, images, spreadsheets, databases, tapes, instant messages, calendar files, e-mail, web sites and legacy systems among others. Nonetheless, this is not limited to the aforementioned. This hundred-person company has an obligation to respond to an e-discovery request following the holding of e-mails and files on both servers and individual employee workstations. In order to respond to the discovery request for the electronically held information, it is vital for the company to develop a litigation response plan that entails policy and associated procedure for proper and quick response to the discovery of the held information. It is also important that the company identify particular positions where backup tapes containing employees’ documents are stored, preserving the tapes containing key players’ documents related to the threatened or existing litigation in case of lack of an otherwise availability of the same information (K&L Gates, 2009). The first step in developing a litigation response plan is conducting an evaluation of applicable rules. In electronic discovery preparation, legal counsel plays a vital role. The first step that the company’s legal counsel should take is conducting a painstaking evaluation of all rules concerning e-discovery that are applicable at the local, state and federal levels. After conducting this evaluation, the legal counsel should educate the company’s board of governors, middle and senior management as well as other departments that it works closely with including risk management and compliance among others about these rules and regulations and their expectations concerning their application to the company. The court’s jurisdiction over and above the complexity of the case under litigation determines the actual process through which electronic information discovery will occur within the company (Umass.edu, 2009). The second step involves identification of the team to carry out the litigation response. This is a fundamental step to the administration and management of discovery of electronic information and a group of interdisciplinary professionals should serve as the company’s litigation response team. At a minimum, the team should consist of individuals from the risk management or legal counsel, information technology and information management departments. Due to the company’s structure, complexity and type, it may appoint other affiliates to the team such as compliance officer, executive management – chief operating and information officers, financial officer and other managers from designated business process areas or departments. It is the responsibility of this team to implement and constantly review, monitor and evaluate the process of e-discovery. The team should assess the company’s current practices if any against the rules of e-discovery that are applicable to the company and jurisdiction. Following the assessment, the team should then put into operation new policy and procedures that are essential in successful management of the e-discovery process, a step involving analysis and discussion of issues pertaining e-discovery and development of company’s resources like Information Technology system diagrams and enterprise destruction and retention schedules. The company’s litigation response team also has the responsibility of overseeing the investigation, identification, recovery, retention and production of responsive electronic information as well as other potentially pertinent information connected to awaiting and current litigation. The team should therefore contribute to legal counsel regarding the forms, layouts, techniques, location, costs, conditions and burden of production of information that is potentially responsive (NCHELP.org, 2002). The third step in developing the response plan involves analysis of issues, risks and challenges. Before the litigation response team develops the company’s policies and procedures, it must do an analysis of the new issues, risks and challenges emanating from discovery of electronic information. The aim of carrying out this analysis is to give shape to policy and procedure and to identify gaps in the company’s resources. From emerging challenges, the team should use direct questions capable of acting as discussion starters. An example of emerging challenges is the attributes of electronically stored information where questions to answer would be: where is electronically stored information located within the company and what would be the standard techniques and procedures that the company would use in identification and disclosure of relevant electronically stored information. Another example of emerging challenges is on preservation and legal holds where questions for discussion would be: what potential triggers would instigate a prospective investigation and probable legal hold, who would monitor the legal hold effectively and either lift or reissue it as relevant facts change over time and how to assimilate, index and produce all potential evidence among others. The forth step in response plan development entails updating or developing the company’s policy and procedures that are related to e-discovery. Of the various policy and procedures that the company should have in place, one is preparing a pretrial conference. This policy delineates the particular steps the legal counsel has to complete prior to its attendance to a pretrial conference. This will help the company to prepare adequately for the pretrial conference by ensuring that the legal counsel research for the key issues that it would address during the conference with plaintiff attorney and the judge. It will also enable the company to fathom clearly that which it is agreeing to in the plan of e-discovery and the outcome of pretrial activities (Umass.edu, 2009). The next policy is conservation and legal hold for information and records. This policy delineates the procedure for conserving electronic and paper records as well as related information in case of a sensible expectation of litigation. The other policy is retention, hoarding and annihilation of electronic and paper records and information. This will enable the company to establish the conditions as well as duration for which electronic and paper-based records and information will be in hoarding, retained and annihilated after they become inactive for business purposes and to ensure suitable accessibility of records that have become inactive. In order to provide an absolute and precise accounting for all pertinent records within the company, a schedule on record retention and annihilation should be an adjunct to this policy. The last policy is production and disclosure of electronic records and information. This policy delineates the procedure in the process of disclosure for electronic and information records associated with a legal proceeding (Thesedonaconference.org, 2008). The last step in developing a litigation response plan is establishing an ongoing monitoring and evaluation system. It is the responsibility of the response team to evaluate the effectiveness of the company’s policies and procedures subsequent to their implementation. The team should develop and review regularly annual training materials and orientation of staff and establish a continuing auditing and monitoring procedure. In order to assess the adherence to policies involving e-discovery, the response team should set up triggers and monitors throughout the company by co-working with the compliance office. Audits of areas of business process and human resource files random audits are some of the audit and monitoring activities in e-discovery policies compliance determination (Umass.edu, 2009). Conclusion In discovery review, electronic documents present inimitable challenges. Issues related to e-discovery current practices are comprehensive of a diversity of file types.  A wide range of file formats has emerged in creation of electronic documents. In discovery therefore, their treatment must differ from that of paper documents. Spreadsheets, word-processed documents, email messages and graphics programs among others have diverse characteristics and therefore need disparate software programs for screening.  References Kane, S. (2009): E-Discovery. Retrieved June 7, 2009, from http://legalcareers.about.com/lr/e-discovery K&L Gates, (2009): Electronic Discovery Law. Retrieved June 5, 2009, from http://www.ediscoverylaw.com/2009/04/articles/case-summaries/finding-question-of-duty-to-preserve-backup-tapes-hinges-on-applicability-of-exception-to-the-rule-court-orders-hearing-to-address-the-issue/ NCHELP.org, (2002): Retrieved June 6, 2009, from http://www.nchelp.org/elibrary/Presentations/2002/2002LegalMid-YearMeeting/llewellyn-bw.ppt Thesedonaconference.org, (2008): The Sedona Canada Principles Addressing Electronic Discovery. Retrieved June 6, 2009, from http://www.thesedonaconference.org/dltForm?did=canada_pincpls_FINAL_108.pdf Umass.edu, (2009): Retrieved June 6, 2009, from http://www.umass.edu/eei/2009Workshop/pdfs/LitigationResponsePlanningandPoliciesforE-Discovery.pdf Read More