Organizations building defensible, in-house e-discovery processes quickly learn that their success requires people, well-documented processes and technology. Whatever is driving the request for collecting and producing electronically stored information (ESI), the goal is to provide responsive information in a consistent, timely and cost-effective manner. This effort takes a discovery response team (DRT) that is staffed with the right kind of people.
Every organization is different and there is no standard when it comes to creating a DRT—it should be shaped by the needs and resources of the company. Large, multi-national companies will require a larger and more geographically diverse team than smaller, national or regional organizations. However, certain universal roles are important for a successful DRT, and it is important that each team member’s role is well-defined, documented and recognized by the organization.
The primary players on a DRT should come from legal, IT and/or IT security and records management. Optimally, the team also should include representatives from HR, audit and outside vendors providing related technology, consulting or services, as well as a senior executive sponsor with the pull to ensure that the team has organizational buy-in and is well-resourced.
The team should be supervised and managed by a lawyer, the more senior the better, particularly for larger organizations. The more e-discovery work an organization has to accomplish, the more time this lawyer must dedicate to oversight. As Ronke Ekwensi, Pfizer’s VP for e-discovery and records management puts it, “if e-discovery is not a substantial part of their day job, you have a problem.”
While the lead e-discovery lawyer need not have a detailed understanding of technology, he must have a basic understanding of the organization’s IT environment and processes and records management strategy. The lawyer certainly needs a thorough understanding of current e-discovery legal requirements and case law, the expectations of courts and applicable regulators,and must keep abreast of trends and best practices.
This lawyer’s role is to obtain organizational buy-in; develop policies, procedures and processes for the team; and ensure their effective implementation. He should lead the discovery plan for each new matter (including both ESI and paper documents), coordinating and monitoring the in-house counsel responsible, outside counsel and the DRT. The lawyer also should manage training and education, and act as a resource for in-house and outside counsel to ensure consistent approaches and legal positioning across all matters. He must be prepared to designate an appropriate witness to testify (or sign an affidavit or attestation) as to the defensibility of the discovery approach in each matter, see to it that they are appropriately prepared for that role, and participate in conferences with the court, regulators or opposing counsel. If the organization chooses to utilize the e-discovery lawyer as the designated witness, the company should be careful not to include him in the development of legal strategy for the matter, as he may be called upon to testify at depositions or in court, thus creating a risk of being questioned on matters that may result in a waiver of attorney-client privilege or work product protection.
Some organizations engage outside counsel to serve as national or global e-discovery counsel, who are brought in to counsel on e-discovery defensibility on each matter requiring e-discovery, regardless of whether their law firm is merit counsel. There is a select group of outside counsel who have a high degree of expertise and focus almost exclusively on e-discovery. One of them, Denise Backhouse of Morgan, Lewis & Bockius, says "As dedicated discovery counsel, we get to know our client's business and data in intimate detail and can partner with the in-house team to create real efficiencies across the EDRM spectrum.”
The other legal component is a discovery specialist—typically a senior paralegal or litigation support professional. They are the organization’s hands-on responder and coordinator for each discovery request, and their role can be key to the success of the team. They work closely with in-house and outside counsel, including assigned paralegals, to identify employees who may possess relevant ESI and put a legal hold in place. They also respond to legal hold questions from business clients, then coordinating the collection and preservation of ESI pursuant to the discovery plan for that matter in accordance with established processes and procedures, documenting compliance with those processes. The discovery specialist often manages relationships with external e-discovery vendors, tracks overall vendor costs and works directly with them on database management, hosting, document review and production to ensure consistency and best practices. They assist the e-discovery lawyer with refinement of policies and procedures and with education and training as needed. Some organizations assign the discovery specialist the role of witness testifying to the defensibility of the e-discovery effort in a particular matter, as they generally are not involved in case strategy.
IT and IT security are responsible for operation and maintenance of the infrastructure, enterprise content management that contains the responsive ESI and, therefore, are essential to any effective e-discovery process. The primary IT/IT security representative on the DRT—sometimes referred to as the discovery technology coordinator—is the liaison to the IT specialists that utilize the organizations’ technology for collection of relevant ESI and, therefore, must be equipped to perform the key role of translator between lawyers’ “legalese” and the technical personnel’s’ “geek speak.” They often serve a project management role for the technical aspects of the e-discovery process in each matter, and manage the personnel who perform the preservation and collections. They must have a general knowledge of IT systems including e-mail systems, messaging, active directory, databases, HR and backup systems, as well as an understanding of legal requirements for ESI preservation and production, including quality control of those processes.
Some organizations include another IT/IT security DRT member with the role of IT compliance coordinator/data collection, tasked with managing data collection, such as collecting data required for legal holds. This person must understand the legal requirements for data collection chain of custody. They often also manage the deletion of preserved data at the expiration of a hold, and provide status reports to the DRT on systems and issues as needed. This person frequently reports directly to the discovery technology coordinator, with a dotted-line connection to the e-discovery lawyer, but working closely with the discovery specialist and paralegal on the case on a day-to-day basis.
Records or Information Management Group
Many organizations have records teams who have specialized knowledge of the location and types of important business records across the enterprise. It is wise to include a senior records manager on the DRT to leverage their knowledge, as they often have the best information on where specific data resides. Records managers also are often called upon to serve as witnesses for organization, so it is smart to include them on the DRT to educate them on the overall discovery approach and procedures.
Frequently HR records are a target of discovery, so it can be beneficial to have a senior HR manager on the DRT as a point of contact in such cases. HR also frequently conducts internal investigations and analyzes the results, and they can help assure you can locate such information.
These groups also conduct investigations of various types. Knowledge of this material can be crucial in certain matters. Also, their inclusion on the DRT and buy-in can help assure that the DRT has defensible and auditable processes.
I hope this overview has been helpful for considering how to build your DRT. For an excellent, more in-depth, resource, consider referring to “E-discovery: Creating and Managing an Enterprisewide Program” by Karen Schuler.