The Triggering Event
The duty to preserve and disclose data may be triggered by a judicial order, a discovery request, or mere knowledge of a pending or future legal proceeding likely to require the data. The scope of data to be preserved or disclosed is determined by the subject matter of the dispute and the law and procedural rules that a court or other authority will ultimately apply to resolve it.
In general, data is potentially discoverable if it is relevant to the disputed transaction or may lead to relevant data. Failure to preserve or disclose discoverable data may result in serious penalties. To minimize this risk, diligent steps must be taken to identify all potentially discoverable data in your possession or control.
- Ensuring that all critical legal and business records are retained;
- Allowing the company to meet legal requirements;
- Preserving the records in authentic format in the event of litigation;
- Avoiding liability (for example, through spoliation -- improperly destroying or altering evidence or failing to preserve it);
- Reducing or limiting costs during discovery;
- Keeping internal documents confidential.
A document-retention policy will necessarily be unique to an organization. Creating such a policy can be painstaking and time-consuming and requires, at a minimum, input from the business, legal and technical input, along with guidance from records-retention specialists. An effective policy will describe the scope of the policy -- are individual departments affected differently, or does the policy apply to the organization as a whole? -- responsible individuals, exceptions to the policy, retention periods, retention methodologies (e.g., storage, format and location), how to handle confidential materials and communications and privacy considerations for employees.
During the identification process, potential custodians are interviewed to determine if they are in possession of relevant documents or data. These interviews in turn may lead to the identification of other key players or possible locations of relevant data. Review the litigation hold letter throughout the identification and collection process to ensure it references any newly identified personnel, locations, relevant time periods, etc. discovered during the interview process. It is imperative that all personnel are informed of the importance of the litigation hold, how it should be addressed and who to contact in the event they have questions. Consequences for not adhering to the litigation hold requirements should be discussed with and acknowledged by each person receiving the notice.
By the same token, if a meet and confer was held, details such as the scope of the requests, timing to comply, method of production and cost considerations should be worked out. Become familiar with these agreements and keep them in mind throughout the identification process.
Casting a Broad Net
Learning the location of potentially discoverable data is the prerequisite to analyzing if and how it should be preserved, collected, and reviewed. Identification should be as thorough and comprehensive as possible. Begin with key players and business information systems. Data of individuals who played a central role in the disputed transaction or matter are likely to contain the majority of information relevant to the dispute. Focusing initially on key players and key business information systems is practical, as legal counsel ordinarily need to access and understand samples, such as select emails and reports, as early as possible in order to define the legal and factual issues which drive further identification and discovery. Failure to preserve key player and key system data also poses the greatest risk of penalties.
The scope of data potentially subject to preservation and disclosure may be uncertain in the early phases of a legal dispute. The nature of the dispute itself and the individuals involved may change as the litigation progresses. The identification team should therefore anticipate change and have a procedure in place for capturing any newly identified information.
Identification requires diligent investigation and analytical thinking by individuals whose minds are also needed to mission critical activities. The very short time frames typically imposed by litigation are not likely to be met without an internal champion who can authorize and direct internal experts and custodians to treat identification as a business priority.
Source: EDRM (edrm.net)