Driving to the FRCP 26(f) Conference: Use a Map, Ask for Directions or Fly Blind?

It's a warm Sunday afternoon. The convertible's idling with the top down and is ready for a drive in the country. You have no idea where you're going or what you'll do when you get there, but it's definitely spontaneous and sounds like fun. So, rather than using a map or asking for directions, you decide to fly blind and just get in the car and drive. If you get lost, no problem; you'll eventually find a gas station and get directions back to the highway.

Following the same route heading into your next Federal Rules of Civil Procedure (FRCP) 26(f) Discovery conference, without a map or directions, might also be spontaneous but won't be nearly as fun. It could also be quite costly. With the shortened timeframes under the amended Federal Rules, it's almost too late to ask for directions once the lawsuit has been served. And pleading ignorance, real or feigned, about the details around electronically stored information (ESI) relevant to the matter can lead to (and has in many recent cases) the 3 S's of e-discovery - Spoliation, followed by "I'm Sorry," and ending in Sanctions.

In order to avoid the 3 S's and comply with discovery obligations, including "meet and confer" conference requirements, e-discovery teams and supporting counsel need a guide or a map that can help them identify the following:

  • Where relevant ESI resides amongst possibly hundreds of potential repositories,
  • What types of ESI live there
  • How ESI is preserved and/or destroyed
  • How legal holds are enforced
  • How ESI is collected when document production is required.

 

This guide is called an "ESI Content Map."

What exactly is an ESI Content Map?

An ESI Content Map is a concise summary of an organization's electronic data sources for use by parties who don't need to know every minute detail about the IT infrastructure. It is a list and description of the organization's repositories that contain potentially responsive ESI for current or future legal matters, such as network shares, e-mail archives, document management systems, financial systems, and proprietary databases. It includes understandable information that in-house and outside counsel need at their fingertips to be competent regarding the identification, preservation and collection of ESI required for discovery related to litigation or investigation.

What are the benefits of using an ESI Content Map?

First and foremost, creating an ESI Content Map can help counsel identify those ESI sources that hold potentially responsive evidence, so that effective litigation hold notices can be issued and relevant ESI defensibly preserved. Too often, we've seen legal hold recipients who claim they could not implement a legal hold because the notice did not include enough information or specificity about what was being requested. This non-compliance and possible spoliation or deletion of critical evidence can result (and has resulted) in costly sanctions.

An ESI Content Map can also be used to help attorneys more effectively communicate with the IT stewards who are responsible for preserving ESI, as well as with opposing counsel during the discovery process. The Federal Rules mandate that parties discuss, early and often, with the other side the ESI expected to be used in the case, even before a discovery request is sent or received.

"Rule 26(a)(1)(B)

a copy of, or a description by category and location of, all documents, electronically stored information, and tangible things that are in the possession, custody, or control of the party and that the disclosing party may use to support its claims or defenses, unless solely for impeachment."

In addition, as defined by FRCP Rule 37 (noted below), safe harbor provisions are available to those parties who can demonstrate with "good faith" that their ESI practices are sound and regularly monitored. An ESI Content Map can help counsel demonstrate to the courts that the organization has been proactive regarding its discovery requirements and consistent in its discovery practices.

"Rule 37. Failure to Make Disclosures or Cooperate in Discovery; Sanctions

(f) Electronically Stored Information. Absent exceptional circumstances, a court may not impose sanctions under these rules on a party for failing to provide electronically stored information lost as a result of a routine, good-faith operation of an electronic information system."

Where do I start?

Creating an ESI Content Map should start by assembling an internal team of people who represent both legal and IT. This team needs to understand both the technical and legal requirements around ESI. And, since the legal department might not traditionally spend much time with IT, some re-introductions may be necessary. A third-party facilitator with experience managing all phases of e-discovery, from early planning and ESI identification through review and production, can help in this process and help to bridge the nexus between legal and IT. This collaboration is critical for creating a sustainable ESI Content Map that includes processes for maintaining it as systems change. And IT systems do change - a lot. Information about ESI is outdated almost as soon as someone answers a question about it. As such, resources for maintaining the ESI Content Map need to be budgeted on a regular basis in perpetuity.

When should I start?

In the quickly evolving world of e-discovery, the time to figure out and understand the organization's ESI is speeding by. The FRCP amendments and the courts that enforce them (both Federal and State) no longer provide a grace period where attorneys and litigants can "fly blind" regarding ESI and figure things out as they go. If you, as corporate counsel or supporting outside counsel, are unsure of how to identify, preserve or collect ESI for a pending matter or in the overall course of conducting business, the time to ask for directions is now. Building an ESI Content Map can help provide a framework for effective, defensible response. Without it, you might end up facing the 3 S's and getting lost each and every time your company gets sued.