Previously published in Lexpert Magazine in June
It's hard to overstate the challenges presented by
electronic discovery, as the amount of digital information stored
by organizations swells to capacity. Drafting a plan can help you
face the imminent deluge
Over the past decade, as the amount of electronic information
created and stored by organizations has grown, so have the
challenges facing counsel and information technology specialists in
responding to e-discovery demands. Counsel is further challenged by
new procedural rules in the jurisdictions in which they practice or
their organization operates.
Legal teams that understand their readiness for litigation and
investigation are able to plan and manage the costs, time and risks
associated with e-discovery. By developing a process with which to
address electronic discovery, organizations can systematically
manage complex discovery demands in a repeatable, defendable and
scalable manner. Whether you practice in a law firm or a company,
you must ensure that your organization is discovery ready, but the
question is how?
The first step of any discovery-readiness project requires the
assessment of the current response capability. The assessment has
multiple aims: understanding your actual discovery readiness;
identifying existing or potential issues with applicable rules and
best practices; and developing a roadmap for the future. Your
assessment should look at a number of metrics, such as the number
and nature of the discovery demands by department or business unit;
the burden, cost and delays to comply; and the risks involved.
To be effective, the assessments must have representation from
legal, IT, records-management, compliance and risk-management
teams. This can help ensure a multidisciplinary understanding of
the situation. Overall, the objective is to identify the people,
processes and technology involved in your organization's
discovery responses. Through interviews, surveys and documentary
reviews, you should be able to gain insight into the interactions
during the discovery phases of identification, preservation,
collection, processing, review and production. To properly
understand these interactions and underlying processes, look
closely at the following dimensions:
1. Governance. Which policies and procedures
are in place to provide guidance on conducting and managing
discovery? Specifically, are there policies relating to records
management and legal holds? If not, these should be developed and
implemented in the first instance.
2. Technology. The biggest question that faces
the legal team when discovery is required is , "Where is the
relevant information?" Answer the question by having a data
map in place that lists the systems, type of data they contain, and
names of the administrators. Irrespective of whether your
organization has a mature enterprise-content management system in
place or simply network-shared drives, the data map can save you
time and effort.
3. Culture. Understanding the cultural aspects
of how the organization and the individual employees use the
information that they create and receive can allow you to
efficiently respond to the demands of e-discovery. Are there
separate silos of information and practice that rarely interact?
Does the organization operate in multiple jurisdictions? The
assessment should provide you with a view of how ready your
organization is to deal with e-discovery requests and enable you to
develop a roadmap to remediate any areas of deficiency.
With the assessment results in hand, you are now equipped with a
framework to help improve the discovery capabilities of your
organization. The keys to success should include updating the
policies, documenting the process, preparing the data map and, most
importantly, ensuring that an effective communication plan is in
place. Regular testing and drills can provide significant returns
on investment. Finally, remember that e-discovery is a process, not
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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