The Litigation Response Plan

Planning is one of the most important parts of the e-discovery process and should include outside counsel, inside counsel, corporate information technology personnel and possibly an electronic evidence consultant. In many cases, this process is driven by the generation of a litigation response plan (LRP). The purpose of the LRP is to:

• Collect, assimilate, and document existing legal strategies, corporate infrastructure and topographies, and electronic evidence production methodologies;

• Work with the inside counsel, outside counsel team, and the corporate information technology team to provide legal and technical strategy, including data gathering strategies, pleadings, and best practices consultation;

• Establish a written policy to follow upon receipt of a discovery request, preservation order or other similar item;

• Ensure that the company meets its legal obligations while minimizing the electronic discovery expense and burden; and

• Ensure that the third-party consultant can provide expert witness testimony in the event the implementations of the electronic discovery strategies come into question.

Development of the litigation response plan should take place at the corporate site with the appropriate legal teams and knowledgeable information technology staff. Interviews with the Chief Information Offices, General Counsel or Director of Information Technology, technology support personnel, records management, and the disaster recovery team may yield a significant amount of information about the location of potentially relevant electronic documents.

Some outside counsel firms provide e-discovery consulting services and many electronic discovery vendors have consultants to assist with designing and defining an electronic discovery project. When selecting a vendor, it is important to examine the credentials of the consultant being assigned the project. Ask for a detailed curriculum vitae and look for references, testimony experience and relevant consulting experience.

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The Litigation Response Plan

Planning is one of the most important parts of the e-discovery process and should include outside counsel, inside counsel, corporate information technology personnel and possibly an electronic evidence consultant.

Key Witnesses & Custodians

Not everyone in a company may be relevant to a particular litigation, but the IT organization, which is designed to support an entire infrastructure, will be. In many cases, key players must be identified by opposing parties.

Determining Key Time Frames

Review the relevant pleadings and discovery requests to determine the relevant time period to the matter.

Keyword Lists

As you interview each potential custodian, ask them about particular jargon or acronyms that may have been used in correspondence, reports, etc., to ensure that all relevant data is searched.

Identifying Relevant Document Types

Are only certain types of data relevant? Can all other types be excluded from the search?

Mapping the Client's Information Systems

An essential component to a successful electronic discovery project is an accurate picture of the target company's data sources.

The Network Diagram

This diagram should depict the types and locations of servers deployed throughout the organization.

Forensic Data Capture

Have any types of activities occurred that would require the forensic copying of hard drives and servers? Have files been deleted or written over that may be potentially relevant?

Relevance of Backup Media

Back up tape systems were created as disaster recovery systems for a catastrophic event. They are meant to restore an entire system or systems after a cataclysmic event and not to restore an email from a single user.

Legacy Systems

Consideration must be given to any prior systems that were in place to handle information during the relevant time period.

Offsite & Third-Party Systems

It has become increasingly popular to store data in locations away from the primary business for security, cost-efficiency or disaster recovery purposes.

Documentation

Carefully document all data identification efforts.