eDiscovery Best Practices: Evolving Standards
eDiscovery is weighing heavily on civil litigation with the exponential growth of electronically stored information (ESI) and recent amendments to the Federal Rules of Civil Procedure that force assessment and handling of ESI early in litigation.
Corporations have to preserve potentially relevant information and prevent the destruction or alteration of documents when they are faced with government internal investigations and anticipated or pending litigations.
With the number of litigations increasing, reviewing documents for relevance, privilege and more is becoming a very expensive affair for organizations. The dedicated army of attorneys required to analyze this vast amount of data is becoming a problem, especially in these hard economic times.
So what exactly are the best practices when it comes to electronic discovery? What do companies on the receiving end of broad production demands do to meet their ediscovery obligations? This is a question attorneys frequently ask themselves and others when trying to assess litigation readiness processes.
When assessing eDiscovery practices, one needs to keep in mind the litigation processes an organization is going through so that improvements can be made to them to comply with best practices. The best practices in the context of electronic discovery used to analyze and assess a given electronic-discovery practice is influenced by the following factors:
Cross-Functional Support- Organizations need to have a cross functional eDiscovery team in place that is comprised of lawyers, paralegals, litigation support, records management specialists and IT. To analyze any information with regards to litigation, all these departments need to work in tandem to come up with logical results,determine what information they are storing and for what purpose.
Monitoring Legal Hold Management – How well are legal holds enforced, documented, re-issued and monitored? How litigation-ready is your organization, whether in-house or with outside help? The primary legal cost is attributed to patent/IP, regulatory investigation and compliance and products liability matters. The other major cost to companies is investment in technology, such as investments in tools for e-mail archiving or legal hold management, software for case management and review programs and data hosting and storage.
Clear eDiscovery Policy – Setting clear cut data retention policies in consultation with the legal staff is important and will help the storage team make faster technology decisions, streamline processes and reduce the time needed to process information requests. Not having proper processes in place will make it difficult to produce information at the right time.
Cull Unwanted Data – Unwanted data can clutter your storage space and more data lawyers will have to sift through it during the analysis and review stage. This increases unnecessary costs to organizations. Hence unwanted information should continuously be cleaned and only that which is relevant to the litigations should be saved.
The Right Storage Media – The Electronic Discovery Reference Model (EDRM) address the lack of standards and guidelines in the electronic discovery market. The legal team clarifies the steps in the e-discovery process, then it is typically up to the storage team to determine what technology will work best.
Identify the Right Product – Depends on the organization’s application and content needs, as well as establishing consistent data storage and retention policies.
eDiscovery is no longer anonymity in the legal community. It has become mandatory for every company in America to have digital records, but the responsibility and maintenance for those records is shifting. One person is no longer responsible for it, a whole team drawn across the spectrum is accountable.
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