Litigation Readiness Planning

Electronic Discovery (eDiscovery) presents a significant challenge in today’s era of massive storage requirements, distributed IT, and growing utilization of personal devices and cloud-based resources.

It is becoming financially burdensome in the face of legal sanctions and penalties for failing to meet the expectations of federal courts. Often, organizations view this problem as a single obstacle, when it is frequently just one component of a more complex information management (IM) challenge in meeting Federal Rules of Civil Procedure (FRCP) and case law requirements.

Eleventh Hour Can Help You Implement an eDiscovery Program, and Assist with Litigation Readiness Planning

Eleventh Hour, a leading information management and discovery consulting firm, has the necessary experience and knowledge in building successful eDiscovery programs.  As thought leaders in discovery management, we have a proven record of effective teamwork among the full spectrum of information management disciplines to create a viable eDiscovery program for your organization. Our goal is to ensure that our customers have in place a process framework that incorporates preparedness mechanisms that allow for effective early information analysis, as well as a robust approach to address discovery life-cycle, from start to finish.

The Eleventh Hour’s Approach

eDiscovery is a process that integrates various components of an organization, drawing from each of their capabilities to fulfill the needed legal requirements. At Eleventh Hour, we help our clients overcome their eDiscovery challenges.  In addition, making a positive change is about more than bringing the right people together at the right time. We help shape information management, enabling IT to protect and manage ediscovery information, while lawyers find and evaluate information and are better prepared to make strategic decisions sooner.

Using our approach, you will better understand your current eDiscovery capabilities, economically, technically and operationally.  Eleventh Hour helps you develop best processes to support your eDiscovery needs, while promoting efficiency and effectiveness from across matters.

Our approach addresses management and archive of the data and records associated with eDiscovery in litigation, while integrating this archive into existing RM lifecycles.

Our experts utilize an integrated methodology that addresses the litigation and compliance profile of an organization, its data management habits and security requires, and incorporates the necessary governance policies, and response procedures required to meet its legal and compliance obligations.

Program Manager

Eleventh Hour serves as program manager through implementation, developing communication plans, data policy, roles, work streams, and information management, workflow and security plans.  In addition, we can assist with the development of the technological approach for scanning and retrieving electronically stored information (ESI) on an organizational level using leading enterprise and litigation support technology.

Eleventh Hour conducts the necessary assessment and gap analysis of the current state of eDiscovery and Litigation Readiness, inclusive of the custodian, IT, DM and RM arenas; compliance with legal hold requirements and identification of spoliation avoidance techniques; and approaches to program improvement, including how best to traverse from policy to program to people to work process to infrastructure needs, value-based purchasing, ideal vendor partnering, and quality measurement.

Eleventh Hour works to define the litigation and compliance profile of organizations and the key roles of the custodians. We work with counsel, IT, and business owners to create an organization-wide data map of the IT infrastructure, and its files that may become part of preservation obligations, compliant with Rule 26 of the FRCP.  We work with subject matter experts to provide the appropriate level of detail in the areas of legal, IT, RM, HR, privacy, and information management. Through our due diligence, we document categories and business life cycles for each role. Our experts offer concrete strategy options and recommendations based on risk level, cost reduction, volume, and accessibility of data in the identified systems.

Performing a Discovery Readiness Gap Analysis

A gap analysis is sometimes the most difficult task to accomplish, for a couple of reasons (1) there is no perfect method to identify all gaps that may exist in any program or process; and (2) the components being considered may not be consistent.  Therefore a discovery framework should be nimble and responsive, and will require leadership to enact and constant vigilance to keep updated over time to remain aligned with organization change.

Sample Assessment for Litigation Readiness Planning

We ask the following questions to aid in assessing collected information and associated systems:

1.     Are requirements for litigation and compliance aligned?  The same data may be subject to risk from both litigation and compliance, therefore it is critical to ensure that a company’s data retention provisions fully address the entire range of these requirements.

2.    Is the company’s ECM system readily searchable and are the exported results consistent with the search results?  Archiving data is one thing, but efficiently searching and producing that data is quite another.

3.      Are the company’s data retention policies adequately defined and enforced?  With the complex nature of multinational business along with the variation between legal and geographic jurisdictions, failure to have defined and enforced retention policies can call into question the integrity and authenticity of produced data, which may render data inadmissible.

4.      Are end users allowed to copy or save ESI (or create PSTs) to desktops or loose media?  If this is happening then users are probably circumventing archive systems and records management procedures; this should be addressed by establishing email archiving.

5.      Does an email purging schedule exist, and if so, how it is managed?  If possible, identify reasonable purging schedules that may be initiated.  Do not interrupt legal holds and preservation obligations.

6.      Have backup tapes been remediated?  Not to be confused with traditional and often costly restoration services, tape remediation enables companies to index and search backup environments without completely loading the entire contents of a backup tape onto the network system.

7.      What systems do we currently have internally in support of the litigation and discovery process?

8.      What systems should we purchase or acquire to utilize internally to reduce risk, minimize costs, or speed response time?

9.      What internal human resources are available to assist in supporting these systems or for responding to discovery requests?

10.   What outside resources are required to diligently and defensibly respond to discovery requests?


Understanding the Future State

By asking questions about the current and future systems, Eleventh Hour assists you with planning for your response to discovery requests.   Evaluation of core systems and processes:

1.      Litigation and Compliance Profile – Identify litigation, investigation or compliance situations which may require preservation, analysis, review and exchange of electronically stored information and paper.

2.      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.

3.      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.”

4.      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.

5.      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.

6.      Internal Discovery Plan Development.  Develop a plan and identify key parties to include to adequately responding 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.

7.      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.

8.     Discovery Workflow Analysis.  Assess information management and flow as it moves through life-cycle to identify any gaps where data is at risk, or where processes may be further refined to better support response.

9.      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.

10.      Train Employees.  Provide an educational experience for users to become familiar with their responsibilities should they become subject to a legal hold.

11.   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.

12.    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.

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