Because of the continuing complexity of cases involving e-discovery, legal teams are required to work closely with colleagues throughout the organization. IT must be collaborated with in collecting data, and must interface with e-discovery software or service providers. Records Management, if such a department or individual exists, often holds the keys to big troves of potentially relevant data. And “line” employees, who can be potential witnesses and data custodians, must be contacted and relied upon to preserve any potentially relevant evidence.
This three-part series will help in-house counsel and other legal professionals to effectively work with IT professionals, records managers, and other employees. (Read Part I)
Part II: Working with Records Management and Super Custodians
If you are in-house counsel for a large company or government agency, in which case you likely have offices and employees all over the country or even the world, your organization has probably taken a somewhat centralized approach to information management. Such an approach typically includes records management and retention policies, information systems configured to help enforce those policies, and records managers to manage it all. These records managers (RMs) are typically responsible for interfacing with the company’s employees (“data custodians” in discovery parlance) about their own information management needs and are also directly responsible for the information managed by the company itself on its email servers, databases, and document management systems and more. As controllers of enterprise information, these records managers are often known as “super custodians.”
Working with super custodians in order to collect, process, review, and produce enterprise information is relatively straightforward. It is their job to work with this information everyday, and they should be experienced deploying it for discovery. Additionally, records managers can also help you understand and navigate the organization, identify potential witnesses, determine the organization’s retention policy and help you implement a litigation hold. It is in these areas where a great relationship with a records manager can really come in handy.
The first thing you have to ask yourself is whether such a person exists. If not, you may have to cobble together a massive witness list—and collect from them—on your own. If there is a records manager available to assist, however, he or she can help you become a clearing house for collecting data, create a list of potential witnesses from whom to collect data, enforce the litigation hold and ensure that custodians are turning over data and documents. The records manager can become “the source” for collecting all data on your case, allowing you to interface with just one or a few people rather than hundreds or more. However, the more you rely on a records manager, the more training and communication is necessary. You must understand the obstacles an RM faces; at the same time an RM must understand your needs, timelines, and the legal ramifications of shortcuts and errors.
Key Questions and Considerations
Here are some things to consider in preparation for working with a records manager:
- Inform the records manager of any potential litigation or investigation holds. Make sure he or she understands the basics of the case and your needs. An experienced records manager should understand how litigation holds work, why they are important, and what is required to avoid spoliation claims. It is also important to make sure he or she understands the facets well enough to explain to custodians who may not be experienced regarding litigation.
- Provide as much information as possible regarding what you are looking for including the size and scope of the matter. Open a dialogue as the RM may be able to identify issues or problems of which you may not even be aware.
- Determine how large the case is in terms of quantity and type of data or number of documents. Again, the RM should be able to help you here. Together, you can determine what is retrievable (typically from e-mail systems, personal files, internet logs, and enterprise systems).
- Have a specific idea and provide specific details of what you want to accomplish with your collection request. The better RM understands your objectives, the more likely he or she will be able to help you achieve them. You will also get a heads-up if you are asking for something that is impossible or extremely time consuming. It is important to be mindful of both the limits and capabilities of what technical experts can do. Some things you think are possible are not and vice versa.
- Consult with other attorneys in your practice or attorneys assigned to work with information technology issues who have previously dealt with day-to-day or complex technical issues. They may already have a rapport with RM that you can leverage.
- Assess any special needs. Determine early on if there is anything unusual about this case (such as large quantities of data, many potential witnesses, or complex technical issues) that will require more of your attention. Work with RM to fight through these issues.
Once you cover the basics with the RM, collaborate on a tactical plan for collecting and preserving potential witness or custodian data. Start with the organization’s retention policy and how the organization handles its data and its network operations. Determine the relevant data retention cycles and policies that could affect potentially responsive information. Find out when back-ups are conducted and which files have been backed up. Learn the destruction cycle for documents and files that may be potentially relevant and determine the extent to which the policies have actually been followed. Understand what data may be stored in legacy systems and how that could impact data retention and collection. Special attention must be paid to any potential witnesses that may be leaving the organization. Know how deactivated accounts for departed employees are handled and whether the information stored in those accounts will be recoverable.
The Technical-RM “Hybrid”
With electronic records and discovery becoming more and more prominent, you may realize that the same person or team who handles IT in your organization also handles records retention; this person is often called a technical records manager (TRM). There is a certain aspect of efficiency that comes with this role—assuming the person can effectively handle it all. A TRM should be proficient with technical issues and may be able to help you with all or at least some of the issues discussed previously in Part I of this series, including data collections. They may even be certified in a forensic collection tool and should be able to coordinate and conduct consistent, complete, and reliable data collections in preparation for litigation.
Perhaps even more importantly, they will be able to tell you who has the relevant documents for the case you are working on, how long data is preserved within the organization, and how quickly you may have to act before you lose any relevant data. A person in this role can provide a tremendous amount of time and cost savings to a company that needs not only a technical expert, but someone who has the managerial skills to coordinate data collections, records management, and enforce the organization’s IT and retention policy.
In addition to helping you navigate the organization and deal with enterprise information, knowledgeable and cooperative record managers can relieve you of serious headaches in coordinating data collection and witness compliance, especially in large or complex cases. RMs can also help you identify unforeseen problems and can help you think about larger organizational issues that you may not have even realized existed. In doing some or possibly all of these things, a RM can save you valuable time and money, so it is worthwhile to cultivate these relationships and help them help you whenever possible.
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