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FRCP 26(f): Use a Map, Ask for Directions or Fly Blind?
It's a warm Sunday afternoon. The convertible's idling with the top down and is ready for a drive in the country. You have no idea where you're going or what you'll do when you get there, but it's definitely spontaneous and sounds like fun. So, rather than using a map or asking for directions, you decide to fly blind and just get in the car and drive. If you get lost, no problem; you'll eventually find a gas station and get directions back to the highway.
Following the same route heading into your next Federal Rules of Civil Procedure (FRCP) 26(f) discovery conference, without a map or directions, might also be spontaneous but won't be nearly as fun. It could also be quite costly. With the shortened time frames under the amended Federal Rules, it's almost too late to ask for directions once the lawsuit has been served. And pleading ignorance, real or feigned, about the details around electronically stored information (ESI) relevant to the matter can lead to (and has in many recent cases) the 3 S's of e-discovery ' Spoliation, followed by 'I'm sorry,' and ending in Sanctions.
In order to avoid the 3 S's and comply with discovery obligations, including 'meet and confer' conference requirements, e-discovery teams and supporting counsel need a guide or a map that can help them identify the following:
- Where relevant ESI resides among possibly hundreds of potential repositories,
- What types of ESI live there,
- How ESI is preserved and/or destroyed,
- How legal holds are enforced, and
- How ESI is collected when document production is required.
This guide is called an 'ESI Content Map.'
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