If this scenario hasn’t played out yet in your organization, it’s likely to in the near future: You look up from your desk to see one of your firm’s attorneys in the doorway, who says, “We need to talk. We’re being sued by a former employee alleging discriminatory employment practices. We need to issue litigation holds and prepare for discovery of all relevant materials.”
Discovery requires both sides in a legal battle to provide all information relevant to the case to the opposing side. Today, most information is stored electronically, and it is incumbent upon litigants to produce this information too.
This can require sorting a tremendous volume of data, easily ranging into the hundreds of gigabytes even for a simple case. A process known as electronic discovery (or e-discovery) is quickly evolving to help companies over this hurdle.
Under the Federal Rules of Civil Procedure (and similar rules adopted by the states), an organization is responsible for ensuring that any records relevant to pending litigation are preserved. This obligation begins as soon as there is a “reasonable expectation” that litigation will take place — that is, before the subpoenas actually start arriving.
Large organizations likely already have a standard process for handling potential litigation, often coordinated through in-house counsel. These rules have governed the retention and disclosure of paper records for many years. Typically, as soon as counsel believes that litigation is likely, they issue a “litigation hold” on all relevant records. This normally takes the form of a sternly worded letter advising all individuals who may possess such documents that they may not destroy them until counsel releases the litigation hold.
In the world of electronic records, this is more complex for a number of reasons. First, while some records may be under the control of individual users (such as files stored on their desktop computers), other records may be under the control of central IT (such as server logs and network traffic records), and still others may be under mixed control (where both central IT and the user may modify or delete information). Second, many organizations use automated processes to facilitate widespread archiving and deletion of data. These processes must be disabled when a litigation hold is in place.
E-discovery, therefore, requires careful coordination between legal counsel, IT staff and end users to ensure that each individual understands his or her responsibilities and that the proper information is preserved until the hold is released. Failure to preserve relevant records may subject the organization to significant fines — in some cases, as high as millions of dollars.
Organizations that are subject to multiple litigation holds annually should consider implementing a formal litigation hold process. This should include, at a minimum, the following elements:
These five elements form the core of an e-discovery program, but there is a wide degree of flexibility in how they can be implemented. Organizations may choose to automate or outsource many of these tasks, depending upon the volume of e-discovery requirements imposed on them each year.
Organizations that are building an e-discovery process should keep these three best practices in mind:
Consider these best practices when designing an e-discovery strategy. When used in conjunction with the five core program elements, they will help create a process that is both efficient and defensible in court.