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A Game Plan for Electronic Discovery

So, someone sues your company and your lawyer emails you a list of forty broad document requests the plaintiff is demanding you produce. According to the Federal Rules of Civil Procedure (FRCP) these requests apply to electronically stored information (ESI) as well as hard copies. You shudder in horror as you realize the requests encompass documents which are:

1) decades old;
2) confidential;
3) on computers in storage;
4) stored off-site
5) mixed with millions of non-indexed and unsearchable files;
6) only readable using outdated software;
7) on storage media used in connection with obsolete hardware;
8) being destroyed daily in accordance with your corporate document destruction policy.

What do you do? Do you give all the documents to the plaintiff? Do you make an executive decision what to produce and what not to produce? Do you start destroying old documents? Do you pay someone else to find all of the documents?

How about none of the above? The first thing you do, if you have not already done so, is to stop the destruction of all documents relevant to the case. Failure to do so may get your company fined or sanctioned and may get you fired. Next, you must find all of the types of ESI responsive the request(s). You then prepare and provide to your attorney an ESI Overview, summarizing the ESI by:

1) which request(s) they relate
2) physical location
3) software required to read document
4) Hardware required to read document
5) Whether the document contains any confidential or harmful information

Even if the other side is completely in the dark about ediscovery, under Rule 26(a)(1)(B) you still have to identify for them, by category and location, all ESI you may use to support your claims and/or defenses. Failure to do so may prompt the court to prevent you from using the ESI later in the case. As it might be difficult to determine up front what ESI you might need to rely upon later, it is best to be over inclusive in identifying ESI early. This also provides you leverage in attempting to prevent your adversary’s use of non-identified ESI later on.

of the ESI you provide them If you have and ESI management system place, it is relatively easy to search for relevant ESI across different platforms, systems and departments. If do not have such a system, you must involve as many people as necessary to identify the relevant ESI before the judge decides to sanction your company. It is best to involve several people, each with particular expertise associated with a specific department or platform. email is likely the most relevant, so start on that first. Next is the old documents on legacy systems. As they will be the hardest to identify, get started on them quickly and allocate sufficient resources toward their identification. After you have found all of the relevant documents, sit down with your attorney and the ESI Overview and discuss which documents are:

1) Responsive to the request(s)
2) Privileged
3) Confidential
4) Potentially harmful to your case
5) Inaccessible – either through difficulty in locating them, software corruption or lack of access to legacy systems.

After you discuss these matters with your attorney, he or she will produce a privilege log identifying confidential and privileged information. Your attorney will also outline a proposed course of action with regard to the remaining points. While FRCP 26(b)(2)(B) does not require you to search or produce documents which are not “reasonably accessible because of undue burden or cost” your judge may have a very narrow view of what constitutes “reasonably accessible” or “undue burden”. Your judge also has the option to shift the costs of the searching and production to the Plaintiff upon a finding of “undue burden”. When determining whether to shift the burden of costs associated with production, your judge will examine:

1) The specificity of the request
2) Alternative sources of the information
3) The importance of the issue
4) The production cost vs. the damages at issue
5) The resources of parties
6) The incentive to reduce costs
7) The benefit to party receiving discovery

The key is to be prepared for electronic discovery. Since your unpreparedness costs everyone time and money, the judge may be inclined to have you pay BOTH the cost of procuring your “Inaccessible” documents as well as those of the plaintiff. Preparing an ESI Overview will streamline the process, reducing costs and disruptions for your company and reducing the likelihood of inadvertently producing confidential of privileged ESI. Most importantly, proper preparation puts the other side on their heels trying to scramble to comply with your document production requests and avoid sanctions from the court.

Brett Trout

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