Without an approved governance model, eDiscovery will be prone to failures associated with:
- Ill-defined roles and responsibilities, resulting in everyone doing everything and/or no one doing anything
- Inability to properly monitor the success of or adherence to policy and processes
- Inability to measure the effectiveness of policies and processes
- Inability to track the costs/benefits and properly budget for ongoing operational activities
- Inability to ensure that the eDiscovery strategy continues to align with business strategies
The program needs to encompass four core competencies: guiding/strategizing, designing/coordinating, executing and monitoring. Each of these competencies is necessary to ensure a relevant and sustainable governance model.
- Who will guide the company by defining policy for eDiscovery and aligning it with Information Management / Records Management policy?
- Who will design and coordinate processes to enable each business to consistently fulfill their execution obligations?
- Who within each business will execute and enforce the policies and processes?
- Who will audit and monitor adherence to the policies and processes?
2 -- eDiscovery is risky and costs money.
eDiscovery costs a lot of money. The primary costs occur at the review and the processing stage. The review stage is used to sort out responsive documents to produce and privileged documents to withhold. It is the time where the legal team can begin to gain a greater understanding of the factual issues in a case. 30-70 % of the eDiscovery budget is spent here. The processing stage must accommodate a wide variety of unstructured data, handle each form in a manner appropriate to its file type, and generate output that is structured in accordance with review requirements that often vary with law firm practices and client needs.
Connected to costs is risk. The most obvious risk is that e-mails, files or paper are destroyed after a litigation hold has been called. Sanctions can be significant if this procedure is violated. Such sanctions include but are not limited to:
1) Substantial fines; 2) Adverse inference instructions; and 3) Striking a Claim or Defense.
3 -- You need an e-mail policy with a specific section on eDiscovery.
Your e-mail policy should cover the aspects of eDiscovery. The section should describe what happens when your company is hit by litigation or by subpoena. It should state the mandatory process of litigation hold and all responsible contacts. But keep it simple and useable.
4 -- Use an accepted eDiscovery Framework.
Using an accepted framework helps your organization to speak the same language about the necessary task during the eDiscovery process. There are two common frameworks available:
The Sedona Principles (http://www.thesedonaconference.org), focusing on fourteen best practices recommendations and principles of eDiscovery issues, including comments on their application.
The Electronic Discovery Reference Model EDRM (http://edrm.net), guiding a common, flexible and extensible framework for the development, selection, evaluation and use of electronic discovery products and services. It can be used as the basis for comparison of your current eDiscovery practices
5 -- IT, Legal, Business and Administration must work together.
Being forced by court to produce tons of electronic stored information within a short time frame is the emergency case for IT, Legal, Business and Administration Departments. All four departments are stakeholders within an eDiscovery process and must be recognized by the Governance Model. They must closely work together during the phase of document preservation, document collection, processing, review, analysis and document production. All for one and one for all!
6 -- Think of in-house vs. SaaS and hosted eDiscovery solutions
During the current economic climate it is helpful to think about a hosted email archiving and hosted review platform, in order to avoid spending budgets on an inhouse solution. On the other hand an inhouse solution is a preferred way to control the eDiscovery process.
7 -- eDiscovery is not only an e-mail issue
Although most litigation focuses on e-mail, the changes driven by the Federal Rules of Civil Procedure (FRCP) do not focus on e-mail alone. E-mail is just an example. Other content types on file shares and desktops are of importance and the FRCP requires that all companies who conduct business in the U.S. must:
- Produce electronic information in its native format, with metadata intact (which precludes providing hardcopy of email, for example)
- Prove chain of custody for electronic information
- Ensure litigation hold policies are enforced
- Complete an exhaustive search of all electronically stored information (ESI), noting its description, category and location, prior to the first pre-trial discovery meeting (within 99 days)
- File an electronic discovery plan within 120 days of a complaint being filed in federal court
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