Attorney Matthew Moeller appeared on Sound Advice, presented by the American Bar Association’s Section of Litigation. He discussed the challenges and best practices for streamlining e-discovery. The following is a transcript of that conversation. The audio version can be found here.
This is Matthew Moeller of The Moeller Firm in New Orleans, Louisiana, and in this edition of Sound Advice I’d like to talk about some simple best practices in managing electronic discovery.
The global volume of electronically stored information has increased exponentially over the past few years. As a result, electronic discovery has become much more expensive, more protracted and more disruptive than ever before. Whether you’re an in-house council or an outside attorney engaged by an organization, the effective management of electronic discovery is paramount in order to streamline the case and keep litigation costs to a minimum.
On the organizational side, regardless of whether you have a large or small organization, it is important to have a litigation readiness plan.
The scope of the plan will vary depending upon the size and complexity of the organization, but it is essential to have a plan in order to keep disruption to a minimum once a case is initiated.
At the center of any organization’s litigation readiness plan should be a clear document retention policy. In addition to the planning and preparation for responding to discovery, an organization must consider its legal duty to preserve evidence. If the organization knows or should know that particular documents, including any electronic data or stored information may eventually become material in litigation, the organization must preserve those materials.
Furthermore, once the litigation is pending or imminent, the organization must take affirmative measures to preserve the evidence that might otherwise be destroyed in the normal course of business.
The underlying obligation of an organization to preserve electronically stored information can be summarized as follows.
Once the organization reasonably anticipates litigation, it should suspend its routine document retention and destruction policy and implement a litigation hold to ensure the preservation of relevant evidence. Furthermore, as a general rule, a hold does not apply to inaccessible backup tapes, which may continue to be recycled on a schedule set forth in the company’s policies. However, if the backup tapes are accessible, then such tapes would likely be subject to the hold.
In summation, from the organizational perspective, it’s most important to have a litigation readiness plan that includes a formal document retention policy. It’s also important to note that while most applicable in the organizational context, the obligations and duties that I’ve discussed apply to all parties under the federal rules of civil procedure.
Now, turning to the outside council perspective, what are some of the best practices for managing electronic discovery?
First, it’s important to know your client’s operations, particularly the client’s information system. It’s also important to know how information is maintained, how it is stored, and what procedures will need to be implemented to retrieve the information if necessary.
Secondly, when a document request is received, outside council should always more than adequately explain the scope of the obligation to preserve electronic data and also the duty to search across different systems and storage media. For outside council should be a partner in the electronic discovery process, not a passive communicator.
Thirdly, in this practice as one that is often overlooked by outside council, outside council should always focus on minimizing the disruption of the client’s business during the discovery process. If the organization includes IT personnel and in-house council, outside council should work with these individuals in order to minimize the time that individual employees, officers and even members of the board of directors have to dedicate to searching their individual files for documents and other electronically stored information.
Similarly, outside council should best use technology in order to provide prompt and accurate responses on behalf of the client. The delivery of prompt and accurate responses can help minimize the risk of more burdensome requests, such as request for on-sight inspections of servers or even request for the inspection of organizational laptop computers.
In conclusion, again, what I’ve discussed today are some simple best practices from both the organizational perspective and the outside council perspective for managing e-discovery and ultimately streamlining the litigation and keeping costs to a minimum.