E-Discovery Rules

This article discusses these emerging realities in light of the Federal Rules' new e-discovery provisions and provides guidance to in-house counsel on how to prepare employers better for their obligations under the rules.

Timing Is Everything

E-discovery rules assume you are ahead of the curve. On Dec. 1, 2006, the Federal Rules of Civil Procedure were amended to include 'e-discovery rules,' marking the first time that the Federal Rules have expressly addressed electronically stored information ('ESI'), which is defined to include e-mails, typed documents stored in a digital form, spreadsheets, pictures, voice mail and other sound files, IM messages, and, more broadly, 'any type of information that is stored electronically.' The new e-discovery rules require, among other things, that the parties discuss ESI issues at the onset of the lawsuit. The parties' initial discovery plan must refer to 'any issues relating to disclosure or discovery of electronically stored information, including the form or forms in which it should be produced.' Rule 26(f)(3).

Furthermore, each party must provide 'a description by category and location of electronically stored information ' that the disclosing party may use to support its claims or defenses' in their Rule 26(a)(1)(B) disclosures. Not only must the parties disclose the ESI they possess and will produce, but also the ESI that they are not producing or searching because they are 'not reasonably accessible.' While the deadline for these Rule 26(a) disclosures will vary by jurisdiction, they must typically be made before the discovery period has even opened, and the parties must provide these disclosures without waiting for such information. See Rule 26(a)(1).

These new Rules will be a particularly painful one-way street for defendants in employment litigation. Plaintiffs in these cases rarely have much in the way of electronically stored data to produce, and claims that there are no such data are difficult to refute. Employers, on the other hand, typically possess this kind of data in abundance, and they are often assumed ' by both adversaries and by courts ' to be capable of easily and cheaply regurgitating it. That is often not true, but claims of poverty, inconvenience, or even incapacity coming from a substantial commercial enterprise are often not taken seriously. Moreover, because plaintiffs rarely have much in the way of ESI to produce, they need not fear reciprocity when making their ESI demands, having no real incentive for being reasonable.

Because an employer's obligation to address ESI is triggered at the outset of litigation and imposed by Rule, employers cannot afford to wait for litigation to ensue before becoming familiar with the kinds of ESI they generate and how it is handled. Courts are unlikely to be sympathetic to employers that are not prepared to discuss ESI early in the litigation, and are even less likely to delay discovery deadlines so that employers can have a 'time out' to self-educate on the issue. Employers that wait until litigation to get acquainted with their storage and retrieval systems can quickly find themselves in crisis mode.

Remember the Basics

E-discovery rules are rooted in the same rules as all other discovery. Even though the e-discovery rules seem intimidating, in-house counsel can lessen their anxiety and better appreciate what will be expected of them by understanding that electronic discovery obligations are rooted in the same rules as all other discovery obligations. Notions of discoverability, oppression and undue burden, and accessibility apply equally to ESI and paper documents.

As with other discoverable materials, employers on notice of threatened litigation should promptly take steps to preserve all relevant evidence. There can be dire consequences for employers that fail to preserve such evidence, including evidentiary sanctions that could ultimately lead to an adverse judgment, even in cases in which victory would otherwise have been assured. For example, where an employer fails to secure potentially relevant ESI after litigation has begun, or even been threatened, a court might allow an adverse inference to be taken
by the jury that a party destroyed potentially relevant evidence when the evidence was damaging to that party's case. The inference has two purposes: 1) to remedy the prejudice suffered by a litigant who is forced to go without important evidence through negligence or purposeful conduct; and 2) to penalize the
spoliator and deter others from destroying evidence in other cases.

The extraordinary and one-sided costs of e-discovery can give a plaintiff unusual leverage to force a settlement, even when the underlying case is weak. The question for employers is whether the costs and risks of litigating the case will outweigh the costs and risks involved in settling the case.

Prepare for Cost-Sharing

Employers who have been through large class actions have a notion of the costs e-discovery can impose; the expense can be enormous, but everything about those cases can be painful. In a relative sense, the costs can be even more painful in smaller cases, where the expense associated with preserving, finding, retrieving, reviewing and producing electronic data easily can exceed the amount in controversy and even the legal fees. The new e-discovery rules provide for cost-sharing among the parties, but employers should anticipate that courts will be reluctant to shift much of the costs for e-discovery to employees if the discovery requests are reasonable and the ESI is accessible. In employment discrimination cases, courts have traditionally been loath to shift such cost burdens to employees for fear that doing so will discourage civil rights plaintiffs from pursuing their rights.

That does not mean, however, that employers should simply assume the costs without first making a case for cost-sharing before a court. To date, courts have tended to look at the following factors to determine whether cost shifting is appropriate: 1) the extent to which the request is specifically tailored to discover relevant information; 2) the availability of such information from other sources; 3) the total cost of production, compared with the amount in controversy; 4) the total cost of production, compared with the resources available to each party; 5) the relative ability of each party to control costs and its incentive to do so; 6) the importance of the information sought to the issues in litigation; and 7) the relative benefits to the parties of obtaining the information.

When the cost-sharing issue is joined, the court will expect the company to shoulder at least some of the cost of complying with e-discovery obligations. Accordingly, it is critical at the outset of a case for counsel, in-house and outside, to keep careful track of the expenditures ' direct and indirect ' of all of the company's efforts to comply with the Rule; the company will want to 'take credit' for these expenditures in arguing the reasonableness of its burden-sharing proposal. Having already produced some ESI (the material most easily and cheaply accessible) will show the company's good faith and make its plea for cost-sharing more sympathetic.

Beyond the ESI already produced, counsel should advise the company to do a sample search of other immediately accessible ESI ' undeleted e-mails on back-up tapes, for example ' from a limited number of the most likely targets and most obvious search terms to show the court the costs involved and the degree to which a more extensive search would be a fruitless fishing expedition. Emphasize that the goal is not to frustrate the truth-seeking process by preventing discovery (the plaintiff can have what he or she will pay for), but merely an effort to share equitably in the cost of that process. Determine what would be meaningful cost-sharing under the circumstances; the court is more likely to entertain at least an equal sharing of the burden in class cases or where the plaintiff is a current or former highly paid executive than it will with a former hourly employee.

Get a Grip on ESI Now

Only the employer that prepares for this battle has a chance of prevailing. To prevail on the cost-sharing issue, prevent ugly spoliation fights, and avoid panicked efforts to keep one step ahead of a motion for sanctions, employers must get a handle on what kinds of ESI they have, where it is kept and for how long, and how it can be regurgitated if needed. A few tips:

Know What ESI Is Discoverable

Under Rule 26(b)(3)(B), a party need not produce ESI in response to discovery requests if the information is 'not reasonably accessible because of undue burden or cost.' The term 'reasonably accessible' remains undefined, but the determination will typically turn on the extent to which data must be restored, converted or otherwise manipulated electronically before it can be reviewed or analyzed. Data that can be retrieved and read without significant technological hurdles is far more likely to be 'reasonably accessible' than data that have been deleted or overwritten and have to be resurrected by forensic experts. Data that are stored for historical or disaster recovery purposes, such as back up systems and tapes, are less likely to be 'reasonably accessible.'

This, of course, places a premium on the pre-litigation implementation of a sensible program of e-document deletion. An employer is not obligated to keep back-up tapes forever, but if those tapes are available and have not been overwritten, there is an increased likelihood that the employer will be obliged to search it and produce responsive documents. Alternatively, if the tapes have been overwritten or the hard drives at issue have been 'wiped,' it is far less likely that the employer will be ordered to resurrect what may be recoverable with forensic assistance.

This does not necessarily mean that employers will never have to produce data that lie outside of the definition of 'reasonably accessible.' For example, if a court determines that material central to the issues to be litigated exists in no other form, an employer may be compelled to produce otherwise 'inaccessible' ESI, and may impose on the employer the cost of production. This means that an employer has an obligation to preserve such data whether or not the data is subject to production.

Review Policies

Within Federal Rule 37(f) lies a safe harbor for employers: A court cannot impose sanctions for loss of ESI resulting from a company's routine and good-faith handling of the material. Employers should assume that their policies will be closely scrutinized by opposing counsel and a court to ensure that those policies are reasonable and legitimate and not designed to avoid discovery obligations, such as making reasonably accessible data purposefully 'inaccessible.'

The Sedona Guidelines for Managing Information and Records in the Electronic Age provide five useful points of guidance on retention polices and procedures:

1. An organization should have reasonable policies and procedures for managing its information and records.
2. An organization's information and records management policies and procedures should be realistic, practical and tailored to the circumstances of the organization.
3. An organization need not retain all electronic information ever generated or received.
4. An organization adopting an information and records management policy should also develop procedures that address the creation, identification, retention, retrieval and ultimate disposition or destruction of information and records.
5. An organization's policies and procedures must mandate the suspension of ordinary destruction practices and procedures as necessary to comply with preservation obligations related to actual or reasonably anticipated litigation, government investigation or audit.

See The Sedona Guidelines: Best Practices Guidelines & Commentary for Managing Information & Records in the Electronic Age (September 2005). http://www.thesedonaconference.org/dltForm?did=TSG9_05.pdf.

In-house counsel should ensure that IT personnel are well-versed on the policies, that they are being followed, and that no exceptions are being made unless counsel has approved them. Effective compliance with such policies requires monitoring IT personnel, auditing practices and taking the necessary steps to enforce the policies.

Create Litigation Hold Directives

Once there is an imminent threat of litigation, the employer must institute a 'litigation hold' that supersedes existing electronic data retention policies and suspends the deletion or destruction of relevant ESI. In-house counsel should ensure that each litigation hold directive is defensibly tailored to the scope of the litigation at issue and that the directive is sent to all the key people with potentially relevant ESI as soon as litigation seems likely, such as when a demand letter arrives.

Employers should ask themselves the following questions about their litigation hold directives:

• Are we acting in time to issue a 'litigation hold' mandate to key employees to preserve all electronic evidence?
• Have the key employees been notified to preserve ESI?
• Does the preservation mandate to employees provide the proper guidance?
• Does IT understand and appreciate the scope and legal stakes of the employer's obligations?
• If new employees are hired post-notice of a lawsuit, are we looping them in to the litigation hold directive?
• If an employee leaves the company, are his/her electronic data being preserved?
• Are we sending reminders to key employees throughout the litigation to ensure that they do not forget their obligations?
• How is the employer tracking compliance with the litigation hold directive?

Know Where Your ESI Is Located

Understanding and handling ESI is not an easy task. Consider the spider web of electronic data sources that most employers now utilize that may contain relevant ESI in litigation: email servers, network servers, backup tapes, desktop hard drives, flash drives and voicemails as well as sources that are mobile and portable such as laptops, UBS drives, PDAs, CDs, floppies, and even company cell phones. Even a text message sent to a cell phone may contain the evidence necessary to win or lose a case. All of these sources may need to be preserved. Employers should document these sources of information in checklist format so that key people can be given effective, defensible litigation hold directives.

Garner Commitment from the Top

Educate corporate leaders on the growing realities of e-discovery and make sure they appreciate the risks involved in failing to abide by e-discovery obligations and the costs associated with e-discovery. It is often effective to discuss e-discovery in the context of how failure to comply with the federal rules can impact the company's bottom line. While the growing burdens may seem unfair to many employers, the rules are here to stay. Get backing from corporate leaders so that you have the necessary resources and authority to prepare the employer for e-discovery.

Develop Good Relations with IT Staff

IT staff is charged with many tasks and the last thing many of them want to deal with is understanding legal obligations. Train them to appreciate that complying with these legal obligations is an important part of their job responsibilities. Send them to e-discovery seminars and provide them with the necessary training and knowledge to understand these obligations.

Get Outside Counsel Involved

While in-house counsel will usually shoulder the lion's share of the burden of coordinating the production of ESI, outside counsel will typically be responsible for explaining the company's efforts to opposing counsel and the court. Educating your regular outside counsel in the company's electronic data storage and recycling processes, involving them in the design of e-document retention policy and asking their help in drafting template litigation hold documents can save valuable time when litigation strikes. Once a complaint is filed, one of the first things on the agenda for counsel ' inside and outside ' should be a conference about what ESI is likely to be implicated and a plan for ensuring its continued availability.

With a little forethought and planning, in-house counsel can minimize the burdens ' and the stress ' that inevitably will accompany implementation of the new Federal e-discovery rules.

Neal Mollen is the Chair of the Employment Law Department in Paul, Hastings, Janofsky & Walker LLP's Washington, DC, office and Co-Chair of the firm's Appellate Practice Group. John P. Isa represents employers in all aspects of employment law.

For the in-house lawyer, managing discovery has always been a thankless task. Business people typically see lawyers (in-house or outside counsel) as impediments and time-wasters. Managers are evaluated and compensated based on their success in achieving business goals, not on how well they cooperate with outside counsel in finding and disgorging records needed for production in business litigation. Cooperation often comes grudgingly, and the in-house lawyer often finds him- herself caught between insistent outside counsel and reluctant record holders.

Electronic data storage has made that job more difficult, not easier, as some naively believed. In addition to prying loose paper documents from far-flung corners of the organization, recent amendments to the Federal Rules of Civil Procedure have engendered new expectations ' among adversaries and courts ' for the production of electronically stored data. Many employers are just beginning to realize the potential breath and scope of these rules and these engendered expectations, as well as the shocking costs, in dollars and time, that e-discovery can impose.

For employers that have, to date, managed to avoid battles over e-discovery, time is short. Every hour spent preparing for the inevitable discovery dispute before litigation commences will save incalculable angst once litigation starts, and can make the difference between winning or losing important legal battles.

This article discusses these emerging realities in light of the Federal Rules' new e-discovery provisions and provides guidance to in-house counsel on how to prepare employers better for their obligations under the rules.

Timing Is Everything

E-discovery rules assume you are ahead of the curve. On Dec. 1, 2006, the Federal Rules of Civil Procedure were amended to include 'e-discovery rules,' marking the first time that the Federal Rules have expressly addressed electronically stored information ('ESI'), which is defined to include e-mails, typed documents stored in a digital form, spreadsheets, pictures, voice mail and other sound files, IM messages, and, more broadly, 'any type of information that is stored electronically.' The new e-discovery rules require, among other things, that the parties discuss ESI issues at the onset of the lawsuit. The parties' initial discovery plan must refer to 'any issues relating to disclosure or discovery of electronically stored information, including the form or forms in which it should be produced.' Rule 26(f)(3).

Furthermore, each party must provide 'a description by category and location of electronically stored information ' that the disclosing party may use to support its claims or defenses' in their Rule 26(a)(1)(B) disclosures. Not only must the parties disclose the ESI they possess and will produce, but also the ESI that they are not producing or searching because they are 'not reasonably accessible.' While the deadline for these Rule 26(a) disclosures will vary by jurisdiction, they must typically be made before the discovery period has even opened, and the parties must provide these disclosures without waiting for such information. See Rule 26(a)(1).

These new Rules will be a particularly painful one-way street for defendants in employment litigation. Plaintiffs in these cases rarely have much in the way of electronically stored data to produce, and claims that there are no such data are difficult to refute. Employers, on the other hand, typically possess this kind of data in abundance, and they are often assumed ' by both adversaries and by courts ' to be capable of easily and cheaply regurgitating it. That is often not true, but claims of poverty, inconvenience, or even incapacity coming from a substantial commercial enterprise are often not taken seriously. Moreover, because plaintiffs rarely have much in the way of ESI to produce, they need not fear reciprocity when making their ESI demands, having no real incentive for being reasonable.

Because an employer's obligation to address ESI is triggered at the outset of litigation and imposed by Rule, employers cannot afford to wait for litigation to ensue before becoming familiar with the kinds of ESI they generate and how it is handled. Courts are unlikely to be sympathetic to employers that are not prepared to discuss ESI early in the litigation, and are even less likely to delay discovery deadlines so that employers can have a 'time out' to self-educate on the issue. Employers that wait until litigation to get acquainted with their storage and retrieval systems can quickly find themselves in crisis mode.

Remember the Basics

E-discovery rules are rooted in the same rules as all other discovery. Even though the e-discovery rules seem intimidating, in-house counsel can lessen their anxiety and better appreciate what will be expected of them by understanding that electronic discovery obligations are rooted in the same rules as all other discovery obligations. Notions of discoverability, oppression and undue burden, and accessibility apply equally to ESI and paper documents.

As with other discoverable materials, employers on notice of threatened litigation should promptly take steps to preserve all relevant evidence. There can be dire consequences for employers that fail to preserve such evidence, including evidentiary sanctions that could ultimately lead to an adverse judgment, even in cases in which victory would otherwise have been assured. For example, where an employer fails to secure potentially relevant ESI after litigation has begun, or even been threatened, a court might allow an adverse inference to be taken
by the jury that a party destroyed potentially relevant evidence when the evidence was damaging to that party's case. The inference has two purposes: 1) to remedy the prejudice suffered by a litigant who is forced to go without important evidence through negligence or purposeful conduct; and 2) to penalize the
spoliator and deter others from destroying evidence in other cases.

The extraordinary and one-sided costs of e-discovery can give a plaintiff unusual leverage to force a settlement, even when the underlying case is weak. The question for employers is whether the costs and risks of litigating the case will outweigh the costs and risks involved in settling the case.

Prepare for Cost-Sharing

Employers who have been through large class actions have a notion of the costs e-discovery can impose; the expense can be enormous, but everything about those cases can be painful. In a relative sense, the costs can be even more painful in smaller cases, where the expense associated with preserving, finding, retrieving, reviewing and producing electronic data easily can exceed the amount in controversy and even the legal fees. The new e-discovery rules provide for cost-sharing among the parties, but employers should anticipate that courts will be reluctant to shift much of the costs for e-discovery to employees if the discovery requests are reasonable and the ESI is accessible. In employment discrimination cases, courts have traditionally been loath to shift such cost burdens to employees for fear that doing so will discourage civil rights plaintiffs from pursuing their rights.

That does not mean, however, that employers should simply assume the costs without first making a case for cost-sharing before a court. To date, courts have tended to look at the following factors to determine whether cost shifting is appropriate: 1) the extent to which the request is specifically tailored to discover relevant information; 2) the availability of such information from other sources; 3) the total cost of production, compared with the amount in controversy; 4) the total cost of production, compared with the resources available to each party; 5) the relative ability of each party to control costs and its incentive to do so; 6) the importance of the information sought to the issues in litigation; and 7) the relative benefits to the parties of obtaining the information.

When the cost-sharing issue is joined, the court will expect the company to shoulder at least some of the cost of complying with e-discovery obligations. Accordingly, it is critical at the outset of a case for counsel, in-house and outside, to keep careful track of the expenditures ' direct and indirect ' of all of the company's efforts to comply with the Rule; the company will want to 'take credit' for these expenditures in arguing the reasonableness of its burden-sharing proposal. Having already produced some ESI (the material most easily and cheaply accessible) will show the company's good faith and make its plea for cost-sharing more sympathetic.

Beyond the ESI already produced, counsel should advise the company to do a sample search of other immediately accessible ESI ' undeleted e-mails on back-up tapes, for example ' from a limited number of the most likely targets and most obvious search terms to show the court the costs involved and the degree to which a more extensive search would be a fruitless fishing expedition. Emphasize that the goal is not to frustrate the truth-seeking process by preventing discovery (the plaintiff can have what he or she will pay for), but merely an effort to share equitably in the cost of that process. Determine what would be meaningful cost-sharing under the circumstances; the court is more likely to entertain at least an equal sharing of the burden in class cases or where the plaintiff is a current or former highly paid executive than it will with a former hourly employee.

Get a Grip on ESI Now

Only the employer that prepares for this battle has a chance of prevailing. To prevail on the cost-sharing issue, prevent ugly spoliation fights, and avoid panicked efforts to keep one step ahead of a motion for sanctions, employers must get a handle on what kinds of ESI they have, where it is kept and for how long, and how it can be regurgitated if needed. A few tips:

Know What ESI Is Discoverable

Under Rule 26(b)(3)(B), a party need not produce ESI in response to discovery requests if the information is 'not reasonably accessible because of undue burden or cost.' The term 'reasonably accessible' remains undefined, but the determination will typically turn on the extent to which data must be restored, converted or otherwise manipulated electronically before it can be reviewed or analyzed. Data that can be retrieved and read without significant technological hurdles is far more likely to be 'reasonably accessible' than data that have been deleted or overwritten and have to be resurrected by forensic experts. Data that are stored for historical or disaster recovery purposes, such as back up systems and tapes, are less likely to be 'reasonably accessible.'

This, of course, places a premium on the pre-litigation implementation of a sensible program of e-document deletion. An employer is not obligated to keep back-up tapes forever, but if those tapes are available and have not been overwritten, there is an increased likelihood that the employer will be obliged to search it and produce responsive documents. Alternatively, if the tapes have been overwritten or the hard drives at issue have been 'wiped,' it is far less likely that the employer will be ordered to resurrect what may be recoverable with forensic assistance.

This does not necessarily mean that employers will never have to produce data that lie outside of the definition of 'reasonably accessible.' For example, if a court determines that material central to the issues to be litigated exists in no other form, an employer may be compelled to produce otherwise 'inaccessible' ESI, and may impose on the employer the cost of production. This means that an employer has an obligation to preserve such data whether or not the data is subject to production.

Review Policies

Within Federal Rule 37(f) lies a safe harbor for employers: A court cannot impose sanctions for loss of ESI resulting from a company's routine and good-faith handling of the material. Employers should assume that their policies will be closely scrutinized by opposing counsel and a court to ensure that those policies are reasonable and legitimate and not designed to avoid discovery obligations, such as making reasonably accessible data purposefully 'inaccessible.'

The Sedona Guidelines for Managing Information and Records in the Electronic Age provide five useful points of guidance on retention polices and procedures:

1. An organization should have reasonable policies and procedures for managing its information and records.
2. An organization's information and records management policies and procedures should be realistic, practical and tailored to the circumstances of the organization.
3. An organization need not retain all electronic information ever generated or received.
4. An organization adopting an information and records management policy should also develop procedures that address the creation, identification, retention, retrieval and ultimate disposition or destruction of information and records.
5. An organization's policies and procedures must mandate the suspension of ordinary destruction practices and procedures as necessary to comply with preservation obligations related to actual or reasonably anticipated litigation, government investigation or audit.

See The Sedona Guidelines: Best Practices Guidelines & Commentary for Managing Information & Records in the Electronic Age (September 2005). http://www.thesedonaconference.org/dltForm?did=TSG9_05.pdf.

In-house counsel should ensure that IT personnel are well-versed on the policies, that they are being followed, and that no exceptions are being made unless counsel has approved them. Effective compliance with such policies requires monitoring IT personnel, auditing practices and taking the necessary steps to enforce the policies.

Create Litigation Hold Directives

Once there is an imminent threat of litigation, the employer must institute a 'litigation hold' that supersedes existing electronic data retention policies and suspends the deletion or destruction of relevant ESI. In-house counsel should ensure that each litigation hold directive is defensibly tailored to the scope of the litigation at issue and that the directive is sent to all the key people with potentially relevant ESI as soon as litigation seems likely, such as when a demand letter arrives.

Employers should ask themselves the following questions about their litigation hold directives:

• Are we acting in time to issue a 'litigation hold' mandate to key employees to preserve all electronic evidence?
• Have the key employees been notified to preserve ESI?
• Does the preservation mandate to employees provide the proper guidance?
• Does IT understand and appreciate the scope and legal stakes of the employer's obligations?
• If new employees are hired post-notice of a lawsuit, are we looping them in to the litigation hold directive?
• If an employee leaves the company, are his/her electronic data being preserved?
• Are we sending reminders to key employees throughout the litigation to ensure that they do not forget their obligations?
• How is the employer tracking compliance with the litigation hold directive?

Know Where Your ESI Is Located

Understanding and handling ESI is not an easy task. Consider the spider web of electronic data sources that most employers now utilize that may contain relevant ESI in litigation: email servers, network servers, backup tapes, desktop hard drives, flash drives and voicemails as well as sources that are mobile and portable such as laptops, UBS drives, PDAs, CDs, floppies, and even company cell phones. Even a text message sent to a cell phone may contain the evidence necessary to win or lose a case. All of these sources may need to be preserved. Employers should document these sources of information in checklist format so that key people can be given effective, defensible litigation hold directives.

Garner Commitment from the Top

Educate corporate leaders on the growing realities of e-discovery and make sure they appreciate the risks involved in failing to abide by e-discovery obligations and the costs associated with e-discovery. It is often effective to discuss e-discovery in the context of how failure to comply with the federal rules can impact the company's bottom line. While the growing burdens may seem unfair to many employers, the rules are here to stay. Get backing from corporate leaders so that you have the necessary resources and authority to prepare the employer for e-discovery.

Develop Good Relations with IT Staff

IT staff is charged with many tasks and the last thing many of them want to deal with is understanding legal obligations. Train them to appreciate that complying with these legal obligations is an important part of their job responsibilities. Send them to e-discovery seminars and provide them with the necessary training and knowledge to understand these obligations.

Get Outside Counsel Involved

While in-house counsel will usually shoulder the lion's share of the burden of coordinating the production of ESI, outside counsel will typically be responsible for explaining the company's efforts to opposing counsel and the court. Educating your regular outside counsel in the company's electronic data storage and recycling processes, involving them in the design of e-document retention policy and asking their help in drafting template litigation hold documents can save valuable time when litigation strikes. Once a complaint is filed, one of the first things on the agenda for counsel ' inside and outside ' should be a conference about what ESI is likely to be implicated and a plan for ensuring its continued availability.

With a little forethought and planning, in-house counsel can minimize the burdens ' and the stress ' that inevitably will accompany implementation of the new Federal e-discovery rules.

Neal Mollen is the Chair of the Employment Law Department in Paul, Hastings, Janofsky & Walker LLP's Washington, DC, office and Co-Chair of the firm's Appellate Practice Group. John P. Isa represents employers in all aspects of employment law.