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Top Five Things you Should Know to Help Plan for and Reduce the Costs of Electronic Discovery

With the recent changes in the Federal Rules of Civil Procedure implemented, electronic discovery is affecting more and more companies.  The new rules make it easier for parties to request electronic documents and data.  Companies can take a few proactive steps now to plan for and reduce the burden and costs of responding to electronic discovery.

1.         Map the Architecture of Your Technology System.  Work with your information technology specialist to develop a map of your hardware systems and software systems.  This map should describe how the systems are connected, locate the available sources of data, and identify how long data is stored.  This map will facilitate quick and efficient responses when overreaching electronic requests are received.

2.         Identify where Your E-mail Resides.  Whether employee e-mail resides separately on individual laptops, workstations or is centrally located on a company’s server(s) makes a big difference in the cost of retrieving e-mail.  If users have the ability to archive email to their workstations or network locations that is not affected by a purge of email from the server, the email files that reside outside the server are discoverable.  If e-mail is stored on hard disc, independent of the email server, individual computers and network servers may need to be imaged and/or searched separately.  Running a single combined search or collection on central servers for relevant and responsive e-mails can greatly reduce the costs of searching and collecting potentially responsive data. 

3.         Implement and Enforce a Data Security Policy.  A good Data Security policy identifies authorized software and hardware permitted for work-related use.  Enforcing a simple policy may reduce the locations and sources of data that will need to be searched.  For example, if the policy forbids sending company data outside of authorized systems, the company may not be responsible for searching employee’s home computers for data.

4.         Manage Your Electronic Data.  Most companies have a document retention policy which identifies types of documents and how long they should be maintained.  Many companies have not specifically applied their document retention policies to electronic data.  Taking this next step can help alleviate the magnitude of unnecessary data stored on electronic systems.   Reducing unnecessary data also reduces the quantity of information that has to be sifted for relevant documents in response to a legal request.    

5.         Implement a Litigation Hold Policy.  When a company receives a legal request for documents, i.e. a subpoena or a notice of a claim or lawsuit, the company is required to preserve relevant documents.  Companies can satisfy this requirement by communicating a Litigation Hold to specific employees and ensuring that any routine destruction of company records is halted for the duration of the Litigation Hold.  Implementing a Litigation Hold Policy can ensure that knowledgeable company personnel establish the correct parameters for a Litigation Hold, ensure that the Litigation Hold is communicated to the correct personnel, and monitor compliance.  A Litigation Hold Policy ensures that legal requests are efficiently handled and reduces the likelihood of inconsistent or inadequate preservation of relevant documents. 

Taking these five proactive steps will help prepare your company for responding to requests for electronic data.  Moreover, these steps will help reduce the burden and expense in responding to electronic discovery.