By now, most attorneys have accepted that e-discovery is a necessary part of litigation. However, it is difficult for attorneys and paralegals to keep up with the speed of technology and the growing body of case law. Therefore, it’s time to incorporate the Electronic Discovery Best Practices Model into your practice. Over the course of the next six articles, we will walk through these best practices so that you know how to handle e-discovery issues without fear. The goal with this series is to arm you, the practitioner, with the tools for successful navigation of e-discovery both during non-litigation and litigation activities.
The Electronic Discovery Best Practices Model
The Electronic Discovery Best Practices Model (EDBP) filled the need for a “lawyer-centric” model to help attorneys navigate e-discovery. The EDBP set forth a clear mission “to provide a model of best practices for use by law firms and corporate law departments. EDBP is designed to be an educational resource for all lawyers striving to stay current with the latest thinking on excellence in legal services in electronic discovery law.”
Mr. Ralph Losey, an attorney and preeminent e-discovery thought leader, helped establish the EDBP model in 2012 as a tool specifically for lawyers to utilize, rather than the vendor favorite Electronic Discovery Reference Model (EDRM). As you continue with your e-discovery education and training, add Mr. Losey’s blog to your reading list. His articles and analysis will be crucial to your continuing e-discovery education.
Litigation readiness — Non-litigation activities
The Electronic Discovery Best Practices Model provides a clear road map of the key activities during both non-litigation and litigation. Think of non-litigation activities as the tasks that, if completed properly, will help you easily perform e-discovery tasks and with less expense. We begin with litigation readiness, which broadly describes the non-litigation activities necessary for data identification and information management, including:
- Education and training
- Litigation hold policies
- Email retention policies
- ESI maps with Rule 26(b)(2)(B) ID
- Certified 37(e) destruction
- Information governance
- Pre-suit protection
You may not have the infrastructure and personnel resources necessary for a focused development of litigation readiness protocols. Therefore, these non-litigation activities are left for you to conduct when on notice of potential litigation. The idea behind litigation readiness is to be prepared for unpredictable litigation, therefore reducing the need to make hasty, defensive decisions.
Litigation readiness — Preservation activities
Litigation readiness also includes “preservation activities.” These activities set the stage for the following four steps of the EDBP: hold notices, interviews, collections and cooperation. Before you can do any of these things, you first must have an understanding of what the data is and where it is. To be most effective, include litigation support and IT from your firm as well as the company’s legal counsel, compliance manager and IT. Start by asking your questions about their data and determine the “who, what, when, where and how.” Your primary concern at the outset of any litigation should be the preservation of relevant data. Because the failure to preserve relevant information could bring claims of spoliation resulting in sanctions, do not wait to discuss these issues. Start with the following:
1. Determine what ESI may be relevant
2. Identify where the ESI is stored
a. Identify all sources
iv. Cell phones
b. Are there retention/deletion schedules in place?
i. If yes, suspend.
3. Determine whether the ESI is accessible
a. If difficult to access, determine if accessible in other location(s)
i. If no, preserve
ii. If yes, preservation not required
b. If easily accessible, this data must be preserved
The importance of preparation
This fundamental outline will steer you through the initial key issues — identifying what ESI exists, whether it is relevant and whether it should be preserved. This exercise will also prepare you for your Rule 26(f) conference, where you will need to discuss preservation, collection and production of ESI. In a perfect world, these conversations occur with clients while not under the threat of litigation. The more prepared you are and the earlier you can be prepared, the better you will be able to manage litigation costs and reduce your risk of unanticipated litigation expenses. Additionally, the more you know up front about your systems, the better you can preserve the necessary ESI for the current litigation and future litigation.
It is important not to simply go through the motions. It is easy to be rushed to figure out your case because a deadline is coming up and your Rule 26 conference is next week. However, use the current litigation as a means for creating standard policies for to use in future litigation. Likewise, create a standard protocol for use in your own litigation practice. There are many resources from The Sedona Conference for additional help on developing organizational policies and procedures. These commentaries will guide you through the process so that you can build and tailor policies to your particular needs.
The more you know about your policies, procedures and ESI, the better you can respond to ESI requests and ensure their retention and destruction policies are defensible. Counsel may need to be persuasive when suggesting to invest money into non-litigation activities. But investments now will only build stronger defenses if and when litigation arises. This is the era of Big Data, after all. You cannot afford to ignore e-discovery obligations. The keys here are documentation and communication. Through litigation readiness, you can successfully limit litigation expenses and reduce your risk for expensive consequences.