Information Management: Formalizing the Fire Drill

A fire can happen virtually anytime and anywhere. Knowing what to do when the alarm sounds is key to surviving. As we learned in grade school,
the fire drill is the best way to ensure that the response to an emergency will go smoothly and result in safety.

So it is with litigation matters. Today's information-rich organizations must be prepared to quickly find and produce electronically stored information (“ESI”) that may be relevant to a given litigation matter or request for information. The trouble is, many organizations do not have a well-thought out response plan in place, which makes the timely production of relevant information difficult, time-consuming and potentially very costly.

Clearly, a more proactive approach is required. By creating and putting in place a fire drill for ESI, companies will be able to execute a defensible e-discovery process in the event of litigation or internal investigation.

Organizing for Success

A successful, proactive response to litigation matters requires teamwork. And, teamwork requires a team.

Just as a fire safety coordinator holds the responsibility for conducting and managing the physical fire drill, the most effective e-discovery efforts are led by an individual who serves as the lead contact in the event of an actual discovery request or internal investigation requiring ESI. This individual drives the litigation response from start to finish and coordinates with the other members of the team to determine the best process. This is often an individual with strong project management and leadership skills who facilitates collaboration, excels at organization and has experience working with a variety of departments across the organization.

Although there may be one person who leads the effort, an effective e-discovery team also includes lead contacts from IT, legal and records management that work together when data must be identified, collected or preserved. The IT lead is typically an individual with knowledge of the organization's IT systems and technology who understands how to leverage technology to improve the discovery process. The IT team member often works closely with a legal team member who has expertise in the discovery process, evidence handling and corporate policies. Together, these team members can identify ways to ensure that data is handled and information is processed in a way that is most efficient for the organization and legally defensible.

The e-discovery team may also include a corporate records manager who has an understanding of information policies and procedures, can assist in locating information, and explain where and how information is retained. Together with the IT and legal lead contacts on the team, the corporate records manager can help create and maintain a data map of electronic systems and storage that can be leveraged for each matter to help streamline the identification and collection process.

Preparing to Hold

Establishing a routine and efficient legal hold process is a foundational element of a good e-discovery plan, and something proactive organizations focus on to improve their response to litigation matters.

The multi-phase legal hold process usually begins by understanding the issues involved in the matter and then proceeding to identify individuals and data sources with potentially relevant information (“PRI”). An organization may also scope custodians by current or past departmental affiliation, project or product, and role as well as by records responsibility or data source stewardship. Initial interviews may be conducted to determine whether additional data sources need to be preserved.

In this phase of the process, a master list of changes should be maintained to ensure decisions are documented in case these details are needed later on in the case, or the process is challenged.

The next phase of the process involves implementing the hold itself. To that end, notice must be given to custodians, records coordinators and IT. If information is stored in an archive or any other system that may have a routine expiration schedule, that schedule must be suspended so the information is preserved.

Once the hold is in place, the interview phase usually begins (or continues). During this phase, inquiries are made regarding data habits, involvement and knowledge of the issues relevant to the matter. With this information, the scope of the hold may be refined, a collection plan is prepared, and the discovery costs may be preliminarily forecast.

The final phase of the legal hold involves collecting PRI as precisely as possible. Due to the costs associated with the collection and processing of data, best practices should include discussing the scope of the collection with opposing counsel in order to try and narrow the issues and reduce the amount of data. As with the initiation of the legal hold process, it is important to document the decisions made during the collection process and the steps taken to complete the legal hold. Automated collection and search tools may be beneficial here, as they can help streamline this process and create an auditable trail of action.

Every litigation matter will have its own unique set of issues, so the specific actions taken to implement a legal hold may differ slightly in each case. However, the fundamental process used to identify relevant information and custodians should include the same elements, no matter the case. The most successful organizations move their legal hold process forward by also taking a look back.

These e-discovery teams review their legal hold process periodically, evaluating everything from notifications to tracking and data preservation and asking a variety of questions in order to pinpoint areas of success and failure. What issues did custodians raise about the process? Were there any challenges with data preservation? If disparate ESI was collected, what worked and what did not? What impact, if any, did automated search tools have on the collection process and what were their capabilities and limitations?

By asking and answering these and similar questions about past performance, organizations not only gain a greater understanding of their information management processes, but may also determine how to respond to legal hold and e-discovery requests more efficiently.

Automating the Legal Hold

Today's e-mail archiving systems can help organizations streamline and automate the legal hold process. Because these systems enable e-mail and other electronic information to be consolidated into a single repository, an archive can serve as the cornerstone for an efficient e-discovery process. An archiving system can not only enable legal hold, but also simplify information management, enforce policies, reduce information redundancy and allow for timely search and retrieval of information in response to litigation or internal investigation.

With an archiving system, organizations no longer have to rely solely on individuals who have received hold notices to identify and preserve the information they think is relevant to a matter. Instead, information that may be relevant is in one central location, regardless of whether it is an e-mail, Instant Message or a document created in a business application such as Microsoft Word, Excel or SharePoint

Consequently, when a litigation matter arises, a legal hold can be implemented from this centralized repository. Legal staff familiar with the specific issues of the matter can set up the legal hold with a mouse click. This, in turn, eliminates the inconsistencies that can result from separate custodians determining what information should be preserved and creates a more consistent hold process. While the hold is in place, new data that is responsive can be automatically added. When the matter is resolved, the hold can be lifted and existing retention or expiration policies can be applied.

Furthermore, an archiving system may help an organization implement and comply with a records and information management program. Establishing this program before litigation begins and ensuring that information is immediately put on hold in response to pending or reasonably anticipated litigation, will help an organization demonstrate it acted reasonably if it should ever be challenged. Needless to say, if an organization can demonstrate it has a process and is following that process, it is much less likely to face challenges and possible sanctions.

Easing e-Discovery

Archiving systems can also improve the search and review phases of the e-discovery process. These systems give organizations a quick and efficient way to search for and review data that is potentially responsive to a litigation request or an internal investigation. Once a search has been conducted, data can be marked and reviewed or exported to a third party (such as outside counsel or other service providers) to perform more advanced processing and review if necessary.

Indeed, an archiving system can minimize the amount of data to be exported to outside counsel for review. This can be very valuable, particularly in organizations that may not be staffed for extensive in-house review. With an archiving system, these organizations can identify the relevant custodians, implement a broad legal hold, then further search the data based on the specific issues in the case in order to narrow the volume to be reviewed by outside counsel.

Some archiving systems also provide the ability to move archived data directly from the archive to other legal tools such as advanced analytics or review tools. This eliminates the reliance on manual export and import processes, and automatically preserves the chain of custody from collection through production.

An archiving system makes it easy for organizations to track and manage internal and external productions. Inside counsel maintains centralized visibility into what has been produced and where it has been sent with reporting about work completed by outside counsel or internal investigators.

Whether preparing for a fire emergency or responding to a litigation request, an organized and well-practiced plan is essential to success. Just as fire drills are held to familiarize individuals with evacuation procedures, putting the people, processes and technology in place that can efficiently and effectively address e-discovery requests, implement legal holds and other e-discovery matters can streamline an otherwise cumbersome and costly procedure.

With a skilled team of professionals following proven practices, aided by advanced automated tools and systems, organizations can ensure that requests for the identification and production of ESI are met not only with speed, but with confidence as well.