Our next series of posts will address some of the key elements and challenges in developing an enterprise-wide ediscovery program as the amount of data under “management” grows, and that information becomes more and more social, global, and mobile.
Centralization of eDiscovery Efforts
Legal hold is the start of a long process; it is the suspension of any regular schedule of processing data such as email deletion or tape recycling. Legal hold may mean anticipated litigation, an employee matter, a forthcoming audit, a governmental investigation or other legal-related matters. Legal holds affect normal business procedures that deal with active and inactive data, and this process deserves careful attention and planning.
Technology has advanced to the point that system administrators and forensic technicians may use over-the-web tools to acquire information remotely from systems and desktops halfway around the country or the world. Remote holds are gaining momentum – the ability to deploy a hold over select repositories, shares, custodians, folder structures, or even specific document types. Acquiring less than a pedabyte of information or more and placing that under hold is challenging and a significant undertaking that requires planning, resource coordination and good information tracking.
Enterprise Content Management systems are beginning to incorporate some ediscovery capabilities to address this need. Litigation holds are becoming easier to automate, roll out, administer, and manage from a central location. Some platforms are beginning to address delivery and acknowledgement of the preservation hold notice itself, and periodic reminders required to stay vigilant throughout the matter’s life. These platforms are beginning to address not only preservation, but also collection and hold in place needs.
Readiness continues to be a challenging area to address for most corporate organizations. Before taking on litigation readiness within an organization, you must first address document retention policy – creation, identification, retention, retrieval and destruction of records, including electronically stored information and paper. Having a retention policy is not sufficient. Control over the systems and environment, how and when employees access/use the information, and what is maintained as business records of value, or maintained as intellectual property or kept for security reasons, is a complex challenge.
Litigation hold is a component of a solid document retention policy. The objective of a structured litigation hold business process is to avoid sanctions under the Federal Rules of Civil Procedure, and to meet discovery obligations in a timely manner. You efficiently meet your discovery obligations by having a reasonable plan for implementing a litigation hold based on the following steps:
1. An operating retention plan and triggers to identify foreseeable litigation
2. The ability to suspend destruction of relevant information
3. A plan to communicate the litigation hold to relevant parties
4. A process for securing information requiring preservation
5. A process to produce relevant requested information
6. A method to confirm the litigation hold is operating efficiently
To meet these obligations we recommend a ten-phase process for development and implementation of an effective litigation hold and ediscovery process:
One – Business Process Review. Identify business activities, business parties, key points within identified business activities, and electronically stored information developed or received in certain business processes. Then determine control points in identified process that are keys to successful implementation of the litigation hold process.
Challenge: Business operations should not be driven by the litigation hold, rather the litigation hold operates in the established business environment.
Two – Data Review and Mapping. Identify “active” versus “inactive” data, data custodians, file types, file locations, and how locations are determined. Establish the foundation for relevant information under Rule 26(b)(2)(B) that is identified and preserved, as well as the cost for production of information not “reasonably accessible.”
Challenge: Information and systems evolve and change quickly, employees come and go; maintaining an up-to-date, relevant “data map” is a fulltime job in and of itself.
Three – Litigation Hold Trigger Analysis. This is the reference point for developing the communication plan and actual information hold process over “who, what, and where” within the company’s data systems. This phase requires careful analysis to identify potential litigation hold triggers, conduct a risk assessment of those triggers, develop a decision process for issuing a litigation hold, and develop a methodology for determining and documenting data relevant to a litigation hold.
Challenge: You can develop a communication plan for legal holds, however in reality, it is a starting point. Be prepared to alter/edit the communication plan to fit the matter/circumstances at hand. There will be changes and updates, often. Do not get too wedded to the plan.
e-Discovery Hold Notice Response Plan Exemplar
|1||General Counsel Office, Legal Team||Establish the preliminary scope and matter for hold notice.||1) Collect list of names involved in case (Custodial List)2) Establish preliminary subjects for data identification and instructions for named data custodians||Preliminary scope of the hold notice is established|
|2||General Counsel Office, Legal Team, IT, eDiscovery Response Coordinator||Inform [ ?] of the hold notice and data subjects||Meeting of Legal Team and IT:1) Review/assign roles and responsibilities for implementing the IT Hold Notice Response Process2) Review standard data preservation plan to see if it requires adjustment – data sources to preserve, top level custodian updates, interview questionnaire, or file/systems list updates||Clear marching orders for implementation of legal hold notice – Legal Team and IT (and any others involved)|
|3||Legal Team, eDiscovery Response Coordinator, IT||Issue formal hold notice to those involved – primary, secondary, tertiary||Send message to involved parties to refrain from adherence to destruction policies for broad definition of data to preserve||Process begins|
|4||General Counsel Office, Legal Team||Assign eDiscovery matter coordinator||Provide the assigned eDiscovery matter coordinator with the details of the case, the hold requirements, custodians involved, and give them clear instructions on legal hold implementation process for this specific matter – who, what, how, when, why details||Someone is directly responsible for legal hold implementation – preservation, collection; work begins|
|5||eDiscovery Response Coordinator, IT||Ensure secure storage areas for applicable electronic data are established for the case||1) Plan build case preservation/collection folder structure –follow accepted general guidelines and checklist template for holding unstructured electronic documents2) Establish any special electronic hold areas – systems, file types, executive custodians, etc.3) Establish email hold area4) Develop instructions on how to use/save information to these areas as part of preservation/collection process||Matter’s electronic preservation/collection repository established; data identification and logging effort begins|
Four – Litigation Hold Communication Plan Development. Identify methods of communication, roles of specific departments/individuals, and means of communications throughout the entire litigation hold process. Establish process to communicate relevant information to the identified personnel.
Challenge: Automating legal hold notice delivery is now a viable option as technology improves to addresses this need. Getting the technology to work well requires constant monitoring and testing for quality assurance. Manual tracking no longer makes sense. This is becoming a job in large organizations.
Five – Internal Discovery Plan Development. Develop a plan and identify key parties to include to adequately respond to discovery requests in the event of litigation. This includes the development of processes and methodologies and may involve the selection and implementation of technical solutions needed to allow your organization to respond to requests.
Challenge: The key is to develop an adaptable process framework which can be applied to 90% of the matters handled. Like the communication plan be prepared to adapt and improve the framework to apply in reality to specific situations.
Six – Litigation Hold Process Development. Develop a documented litigation hold process for documents and electronically stored information, including the identification, collection, and securing and monitoring of data relevant to the event. Document your process compliance along the way.
Challenge: To keep up with process documentation requirements. Write it down (or it never happened/doesn’t exisist)!
Seven – Prepare a Training Plan. Prepare a plan to educate employees on the importance of and how to comply with document retention and litigation hold processes.
Challenge: It is relatively easy to prepare training content and rollout a program. Getting people to attend the program, to realize what their obligations are and think before they act, or adhere to procedures established is the challenge here.
Eight – Train Employees. Provide an educational experience for users to become familiar with their responsibilities should they become subject to a legal hold.
Challenge: Often there is little interest in funding a training program. Some companies are turning to automated legal hold systems to deliver information to custodians about their discovery obligations when under legal hold.
Nine – Test System for Quality Assurance. Develop a process that provides benchmarking assessment and documentation progress for the rollout of the litigation hold. Identify how and when to collect feedback for analysis and process redress.
Challenge: Making the time to regularly monitor quality of your program.
Ten – Provide Ongoing Review and System Updates. Data, systems and technology change quickly and advance rapidly. Provide long-term monitoring process to evaluate litigation hold policies and procedures to best align with current operational and organizational changes, legal developments or technology advances.
Challenge: Making the time to regularly update your program once established.
Today’s complex business environment and its global reach make enterprise eDiscovery Program Development a daunting undertaking for most organizations. Breaking discovery into manageable phases is a good start in planning for effective litigation readiness. Within each phase, break down tasks, address roles, define actions, scope, responsibilities, and documentation requirements, and identify the overall desired outcome. Phased discovery work allows organizations to benchmark progress, to evaluate and capitalize on internal strengths and resources, and to identify those areas where gaps exist that may require outsourced support to fulfill obligations.