Keep it! Developing a Defensible Electronically Stored Information (ESI) Preservation Program

What is Electronic Discovery?

The identification, preservation, collection, review, and production of electronically stored information(ESI) relevant to a legal or regulatory matter.

Key Terms

• Preservation – is a broadly-defined duty to retain, in the form it is kept by the organization, all documents which may potentially be relevant to the litigation.

• Collection – is the aggregation of documents likely to be related to the litigation and requiring either production or attorney review to determine their responsiveness.

• Production – is a narrower obligation to produce documents responsive to a specific demand or subpoena. The form of the production is either as the documents are kept in their ordinary course of business or pursuant to meaningful production categories.

• Document – Paper documents, computer files, recordings, databases or compilation of the above.

• Business record – A document that records business dealing.

• Record Custodian – The individual or department responsible for the disposition of the record.

• Life cycle – Every document should have a life cycle. This spans from creation to final disposition.

• Disposition schedule – Defines how long categories of documents need to be preserved.

• Litigation Hold – Suspends normal disposition schedule and requires the preservation of relevant material.

People – Process – Technology

Do you have a documented policy on litigation holds? Do people know what to do? Do you have protocols to assist?

How much is automated? Are you still using spreadsheets to track? What about reminders? Still think it is too expensive?

Who manages holds system? Is it dispersed or centralized? Is everyone properly trained?

http://www.edrm.net/

Effects of Rule 37(e) Amendment

(e) Failure to Preserve Electronically Stored Information. If electronically stored information that should have been preserved in the anticipation or conduct of litigation is lost because a party failed to take reasonable steps to preserve it, and it cannot be restored or replaced through additional discovery, the court may:

1. upon finding prejudice to another party from loss of the information, order measures no greater than necessary to cure the prejudice; or

2. only upon finding that the party acted with the intent to deprive another party of the information’s use in the litigation:a) Presume that the lost information was unfavorable to the partyb) Instruct the jury that it may or must presume the information was unfavorable

to the party; orc) Dismiss the action or enter a default judgement.

What to know to be prepared?

• Imperative to work with IT department

• Be clear about the legal needs. Tell IT what you need, not how to do it.

• Do not forget the different data sources:• Internet

• Intranet

• Social Media

• Mobile Devices

Know and be Prepared

Common Economic Pitfalls

• Failing to preserve

• Overboard processing and hosting

• Inefficient review workflow

• Failing to produce

Typical Cost and Benchmarks

• Processing $250 - $500/GB

• Hosting $500 - $1,000/GB

• Scanning $0.12/page

• Tiff - $0.04/page; OCR $0.04/page

• 50,000 pages/GB or 10,000 documents

• Experienced lawyers can review and code 400-800 documents/day