You’ve received a request for electronic discovery and it's panic time – where do you begin?

In this paper we’ll look at how you can develop an eDiscovery response strategy for your corporation by gathering answers to five famous questions – who, what where, when, and why, and by forging strategic relationships with both internal and external resources.

Before we begin, however, there is one additional question that must be addressed- what are your corporation’s objectives when responding to an electronic document request?

While each matter will differ, there are several universal objectives you may wish to consider:

• Ensuring preservation of the electronic evidence in order to avoid claims of spoliation
• Finding a sensible way to manage the review of large volumes of discoverable documents
• Minimizing eDiscovery costs

Once you’ve outlined your eDiscovery objectives, it’s time to tackle the five questions:

1. Who?

There are actually two ‘who’ questions that need to be addressed:

• Who are the electronic document custodians of interest?
• Who is knowledgeable about how and where the electronic documents are created and stored?

In the same way that you identify key players and likely witnesses in traditional discovery, you must also pinpoint specific electronic document custodians and specific computer users in eDiscovery. To accomplish this you should prepare a partial organizational chart of all people who have created, received or shared relevant information on their computers, as well as their titles and the location of their computers.

2. What?

Once you know who created responsive and potentially relevant electronic documents, you must think about what kinds of electronic documents were created by the key players. Not all computer users create information in the same way. Senior management typically only uses standard office software, such as Microsoft Word, Excel, Outlook and PowerPoint. Finance and accounting personnel will use the above as well as accounting packages and databases. Engineers and computer programmers often also use CAD and other specialized technical programs. The best way to gather, process and review electronic documents will depend greatly on what kind of data is at issue.

3. Where?

You’ve identified who the key players are and what type of electronic documents you may face; the next issue is where the electronic documents reside. Some of the specific questions you may wish to ask:

• Where is the backup stored?
• Where are documents saved on the network?
• Where are email messages kept?
• Do the users have the capability to access electronic documents remotely from home?
• Do users have corporate-issued Blackberrys or digital cell phones?

As a responding party, the ‘where’ questions must be answered as soon as litigation is pending or imminent. You will need this information both to carry out document preservation obligations and to determine from what locations you will need to collect data while minimizing business interruptions for your organization.

4. When?

As with the 'who' questions above, there are two components to the 'when' question as well:

• When does the duty to preserve electronic data attach?
• When was the responsive data created?

In electronic discovery, changes to data can occur unless you take immediate precautions. For instance, backup tapes are rotated and recycled on a predetermined schedule; if potentially relevant data is overwritten – even with the best of intentions and in the normal course of business – courts may find evidence of spoliation. In addition, electronic evidence is very fragile - it can be easily changed, overwritten and obliterated by everyday use of the computer.

That’s why the answer to the first ‘when’ question is that you must preserve electronic documents as soon as you know that litigation is pending or imminent.

The answer to the second ‘when’ question– when was the responsive data created? – is a bit more complex. If you are the responding party, you will be able to begin data gathering only after you know what time period is at issue. An interesting issue arises when you are asking for time sensitive data – if the ‘date created’ is outside the date range requested and the ‘date modified’ is within the date range, do you produce? (Note: If you are a requesting party, you should tailor your electronic document requests to a reasonable period so that it does not give the appearance of being a ‘fishing expedition’ or too burdensome.)

The answers to the ‘when’ questions are important in order to provide to avoid accumulation of excess data and unnecessary discovery costs.

5. Why?

Why do you need to do all of this?

Given the costs and resource requirements associated with eDiscovery, this is a question you’ll likely have to answer for your management team. The answer is that electronic discovery is becoming a fact of life in complex litigation, and must be confronted head on. To ignore, trivialize or play fast and loose with the nuances of electronic discovery is to flirt with disaster.

Leveraging Internal and External Resources

Once you’ve addressed the five questions above, it’s time to find some help – both internally and externally.

Successful electronic discovery means more than just gathering information reactively. It means maintaining control over information creation and storage during the regular course of business. This mandates a new responsibility for in-house counsel – the need to forge relationships with IT personnel, outside counsel, employees and eDiscovery experts.

IT Personnel

In-house counsel must understand the company’s computer infrastructure as it affects document retention, preservation and retrieval issues.IT personnel, on the other hand, must understand how their technology decisions affect the company’s legal interest. Tasks such as choosing an email program, creating a protocol for storing electronic data on servers, saving monthly backup tapes and defining retrieval capabilities can have profound consequences when the company is faced with an electronic document request.

Employees

Electronic data storage now means that every employee is a document custodian. At a minimum, every employee must understand that:

• Email is not private
• Delete does not really mean delete
• Any document may eventually become public

This is particularly relevant when litigation is pending and you have identified ‘persons of interest’ who may have access to potentially responsive documents.

Outside Counsel

Outside counsel brings significant value by apprising their clients of the changing law concerning electronic evidence. By leveraging the collective experiences of their clients, outside counsel can bring insight into the types of documents frequently requested, as well as identifying trends in various discovery rulings both here in Canada and the United States. In fact, courts in the United States expect outside counsel to get this information firsthand from IT personnel – it’s not enough to simply consult with company’s law department or senior management. As a result, outside counsel must be prepared to conduct a thorough inventory of their client’s electronic data in responding to discovery requests.

eDiscovery Experts

eDiscovery experts bring efficiencies to the entire process. They’ve worked on many of these types of assignments and therefore have a proven protocol in place to preserve the integrity of the electronic evidence. authenticate the evidence and maintain the chain of custody. Most full-service eDiscovery firms will possess forensic software and hardware to enable de-duping, date range selection, keyword searching, etc., that will greatly facilitate your ability to review the electronic documents for privilege.

eDiscovery experts can also assist in the wording of letters and orders so as to ensure that the request is succinct, yet complete, and can assist in the execution of the request or Order. Execution may be a bit more complex than it seems. For instance, an order that stipulates ‘all active files’ does not give license to ‘image’ an entire hard drive or server! If you allow the opposing party to image the media, you’ll be giving them a lot more information than they had asked for, including the ability to retrieve deleted files contained on that media.

Finally, most eDiscovery firms can provide valuable assistance in the cost-effective migration of electronic evidence into outside counsel’s litigation support system.

Summary

When you are faced with a request for electronic discovery, take the time to create an electronic discovery plan that defines corporate objectives and addresses the five questions identified above. Then get some help, both internally and externally - you will need it! 

If you are not yet faced with litigation, these same steps can be used to create an electronic discovery contingency plan. This proactive approach will remove the time pressure of dealing with an impending litigation and will allow you and your corporation to develop an efficient, cost-effective approach to electronic discovery.

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