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Creating A Repeatable, Flexible And Defensible ESI Plan
Mark Van De Voorde, Chief Legal and Administrative Officer, Victaulic
It happens every day. Thousands of employees are using all manner of devices, generating paper documents, communications, and electronically stored information (collectively “ESI”) in over 100 countries, all while making and selling an equally high number of SKUs to our global customers. As an employee in a growing company, this is a normal business day; as Chief Legal Officer (“CLO”), it looks like the mountain of discoverable ESI materials just grew yet again. So how does a CLO scale and tame this figurative and literal ESI mountain? By working with IT and business partners to create and implement a repeatable, flexible and defensible ESI plan.
Sounds easy or hard, or both. Yes to all. Defensible and compliant e-discovery begins with content and data management, linked to a global document retention policy and supporting processes to preserve and protect essential information from loss or spoliation, and over time, having a process for eliminating that which is not relevant to reduce the time and expense of maintaining and reviewing it later. Easy to say, hard to implement. Why? – At least three reasons at the outset that require a change in mindset for an ESI process to work:
(1) Internal business partners resist content management processes and document retention no matter how automatic and technology enabled;
(2) The legal process, timeframes, motivations and requirements are different from those of the business, including the IT department. It’s easy to advocate that everyone collaborate and communicate to connect all stakeholders on the requirements, objectives and timeframes for collecting and producing the requisite ESI as part of a standard business process. But this requires advance coordination work by Legal, IT and the management team to prevent stress and disruption. In the context of doing this while a case or cases underway, the laudable but elusive goal to bridge the gap between the law and the technology seems like changing the wheels on the bus while it is moving.
(3) Let’s be honest, lawyers don’t always understand technology even though they are supposed to be providing direction to IT and external vendors on the ESI process. Some degree of technical competence and in-house sophistication is required to work in tandem with IT and external vendors to create a technology and legal workflow developed as the requests, as well as what may be relevant to search and secure from the data set, evolve along with the legal matter at issue.
Why does all this matter? We all want to win the case or successfully resolve a matter.
On the positive side, ESI related issues are often case-determinative regardless of case type, size or venue. On the negative, everyone wants to avoid a mistake in ESI that results in sanctions, an adverse inference jury instruction, or worse, a large damage award. So where to start to achieve the end goal of optimizing, organizing, and synthesizing data to a point that it can be used as evidence?
It’s time for the CLO to talk with the CIO to learn about what the attorneys will describe as technology-assisted approaches to outline, for each case, the e-discovery assignments, monitor progress, produce privilege logs, and track and manage any process exceptions which will then be completed by manual attorney analysis to classify documents. The CIO will describe the process as technology assisted review or predictive coding with the configurable IT system to allow for advancing ever new search techniques, including but not limited capabilities like document clustering, fuzzy searching, pattern recognition to reduce the amount of manual review. Did they both describe the same process–again yes and no, and for both sides, crossing the divide requires a lot of prior planning and a bit of trust.
Why does all this matter? We all want to win the case or successfully resolve a matter
Trust begins with openness and foreknowledge, and when it comes to ESI and legal discovery this means common views via communications from both the CLO and CIO to the IT team and document custodians about expectations for the entire process. Here is an outline to summarize and communicate the entire process:
• Define the time frame and explain the rapid pace of e-discovery and the at times, inflexible deadlines driven either by the judge / magistrate or an intractable opposing counsel
• Litigation hold notice to all relevant custodians. There are a number of great programs to enable this and link it to the ESI program / vendor.
• Determine what to search and hold by working with IT early to data map the organization and where the ESI resides—A non-exhaustive list may include email, voicemail, cell phones, laptops, PDAs, scanners, back up tapes, hard-copy files, text messaging, instant messaging and other social media, meta data and thumb / external drives (including the “cloud”). But never forget about paper, legacy, archived and non-standard data across all geographical locations
• Appropriate key words and search terms to eliminate the unrelated and irrelevant as well duplication suppression
o Common misspellings and alternative spellings for de-duplication
o Communicate with opposing counsel prior to the search
o Not all ESI searches are created equal
o Metrics to track the effectiveness, accuracy and productivity of the e-discovery process.
• Agree on the technology to conduct the ESI search whether it is data analytics and algorithms built into the in-house, SAS in the cloud, or an outsourced vendor technology.
• Leverage this technology with “collaboration platforms,” whereby all inside and outside team members, such as outside counsel, experts and vendors, are virtually connected and provided access to their respective e-discovery tasks.
• Ensure there is consistency in relevance, materiality, privilege and confidentiality determinations. Assume the court will require and enforce strict accountability on claims for privilege of any document produced and avoid a reliance in litigation on a “claw-back” agreement with opposing counsel.
• Prepare to satisfy the inevitable meet and confer obligations of FRCP 26(f) and be able to defend all of the ESI process and decisions made regarding production and privilege for the judge
• Prepare for trial utilizing the ESI as evidence; yours and the production from the opposing side(s). It often helps to explain that just because it was produced does not mean that it will be admitted into evidence.