United States: How Companies Can Plan Ahead and Minimize the Burdens of E-Discovery

It can be an enormous challenge for companies to institute a litigation hold and preserve or collect Electronically Stored Information in response to a discovery request in a legal matter.

From a business perspective, new technology can be a wonderful thing, offering flexibility, mobility and convenience. However, from a legal and IT (not to mention security) perspective, more devices, more software and apps, and more repositories for ESI can create headaches because it usually means that more data is being generated and spread out, and is often being mixed together with other types of information.  As such, advancements in technology that are allowed to go unchecked can greatly increase a company's burden, time and expense in gathering relevant information when litigation arises.

Many forward-looking companies who have repeatedly responded to the needs of eDiscovery recognize the importance of swiftly identifying what documents and ESI it has that may be subject to discovery, and quickly preserving and collecting that data. In this writer's experience, the companies who are best prepared to implement a litigation hold and respond to a request for electronic discovery are the ones who have:  (1) centralized their electronically stored information; (2) established a logical and easy-to-use system for structuring and organizing the company's data; and (3) developed clear internal policies and procedures relating to the retention or deletion of electronic data and the organization's response to a request for ESI.

  1. Centralization.

In today's business environment, relevant information might be created and stored in many different locations, such as on computers, servers, tablets, PDA's and cell phones, removable media (flash drives, DVD's, etc.), cloud-based email or document management systems, etc. Simply stated, the more sources there are of potentially relevant data, the more time consuming and expensive it will be to search for and collect it all.  Having data scattered around can also significantly increase the risks of security breaches and of losing important documents due to corruption of files, hardware malfunctions, theft, or intentional or inadvertent deletion or spoliation of files by employees.  Obviously, having more devices can also increase a company's costs to maintain those different systems.

On the other hand, having a centralized system for storing and maintaining important company records can have many benefits. It can significantly improve data security, the ability to create usable and efficient backups, and the ability to set and consistently follow a records retention policy where old, useless data is deleted after a defined period of time.  Having a centralized system can also drastically improve a company's ability to promptly identify – and preserve and collect – information and data sources that are relevant to a legal matter.  If the proper controls are in place, potentially relevant data can sometimes be identified, preserved and collected through a single point of contact with the company (usually someone in charge of the IT systems).

A centralized system ideal for responding to requests for electronic discovery will typically feature: (a) secure servers that house all of the emails and documents created and maintained by the company's employees; (b) controls enabling the company's IT specialists to easily and quickly back-up the data, set retention and litigation hold processes, and protections against the spoliation, corruption or loss of data; and (c) a single point of access enabling the company's IT specialists to quickly and easily identify and export all of the relevant ESI, in formats that are useful in litigation and preserve original metadata.

Sometimes email journaling systems can be useful in gathering emails relevant to litigation. Such systems often retain all of the company's sent, received, and deleted emails, even though users may be able to routinely delete messages from their email client (e.g., Microsoft Outlook) to create space.  When considering an email journaling system, however, care should be taken to ensure that the system provides effective searchability and exporting features, as described above, and that the system retains a complete record of all emails and attachments.  Some journaling systems create and retain incomplete ("stub") emails, making the task of collecting the complete email record difficult or impossible.

A non-ideal and decentralized system, which can drive up the costs and burdens of eDiscovery, will typically allow users –at their choice – to save documents locally to various devices (computers, tablets, cell phones, removable media, etc.), or third-party, cloud-based document management systems that they control, such as Dropbox or Google Drive. Similarly, non-centralized systems may allow users to create and/or use personal or other email accounts for communicating on matters related to the company.

  1. Structured and Organized Data.

Harken back to the "paper age" and imagine that you're a sales person who works on 20 different deals in a given day, creating purchase orders or invoices, jotting down notes, drafting correspondence, etc. Now imagine that instead of maintaining a separate file folder for each specific transaction, your practice is to place each document you create – along with your junk mail, paystubs, grocery list, etc. – into a canister, which you send through a pneumatic tube system that dumps out into a gymnasium-sized basement of the company.  Now imagine that all of the other 50 sales people at your company engage in the same practice, as does the CEO and the 300 other people across the company's various departments.... And everyone has been using the same system for 15 years.

In that situation, how difficult would it be for you (or your company's lawyers) to go back and find the important notes you jotted down on a specific transaction from 6 months ago?

Much like the gymnasium-sized basement, a server or network can serve as a centralized "dumping ground" for all of a company's ESI – where all things both relevant and irrelevant (including perhaps employees' personal information) is stored. When it comes time to locate and produce only the relevant evidence, someone must still deal with the entire mountain of information– most of which is likely irrelevant to the matter.

By contrast, having a centralized document management system for employees to save records under a clear taxonomy and foldering system enables a company to locate smaller "buckets" of potentially responsive documents much more quickly and accurately. It also enables a company to more consistently implement and comply with its records retention – or destruction – policies, so as to eliminate useless or outdated information that no longer serves any business purpose.

A structured system that is better suited for responding to the needs of eDiscovery would carve out well-defined network shares. Each individual might have their own share to which they can save the documents they create or maintain.  Depending on the daily business needs of the company, certain shares or folders might be established for specific departments, transactions or matters.  Having a structured and organized system may also allow for easy searchability, by providing means to identify certain important criteria about the documents, such as document types or applicable creation or editing dates.  As mentioned above, it would also allow the company or its IT professionals to export all of the selected ESI in formats that are useful in litigation and which preserve the documents' original metadata.

  1. Internal policies and procedures.

Finally, what good is having a centralized and structured system for maintaining emails and documents, if your employees don't know how to use the system, or if they can easily circumvent it?   In practice, the lack of clear policies and/or the lack of employee education concerning these policies, can expose a company to the risk that its record retention desires are not followed and its technology not used.  This can lead to the risk of noncompliance with the company's eDiscovery obligations, which in turn, may expose the company to the risk of sanctions, court costs and/or attorneys' fees.

The Federal Rules of Civil Procedure require parties to produce any relevant documentation in their possession, but they can also shield parties from any liability for failing to produce certain documents that are no longer available due to the routine, good faith operation of an electronic system (for example, when old emails are deleted prior to the litigation pursuant to an automatic deletion policy). However, parties are only shielded from liability if their retention policy is clearly written and if it is enforced consistently within the organization.

In order to comply with its eDiscovery obligations, a company might consider adopting and educating its employees on a clear, written document retention policy governing, for example: what constitutes an official "record"; how and where employees should or should not store those official records; and the schedules for retaining different kinds of official records as well as other unimportant emails, documents and other ESI.

Companies might also consider implementing a litigation hold policy and procedures that suspend any deletion of documents and emails if a reasonable anticipation of litigation arises. Such a policy would also outline: procedures for reporting litigation or threats of litigation against the company; the internal procedures for handling litigation holds; and the responsibilities of employees who implement or are subject to litigation holds.

Companies might also consider adopting policies and educating its employees about maintaining the confidentiality of sensitive company information, and the proper and/or improper use of the company's information systems (including the use of its computers, mobile devices and Internet access). For companies who allow employees to "Bring Your Own Device," a BYOD policy might address issues related to the retrieval of company-owned data on personal devices and govern employees' privacy issues.

Finally, when investing in a centralized, structured email and document management system, it is important to educate employees on how to use it, and any taxonomy and foldering system that you create.  Make sure to clearly document both the policies governing the retention of data and the technical procedures for executing the preservation and collection of ESI.  Your new IT personnel will thank you when tasked with preserving and collecting data that may predate their own employment by years.

While the above list is certainly not an exhaustive one, these kinds of controls can be a great help in limiting a company's data and the time and expense associated with complying with the needs of preserving, collecting, searching and producing a company's Electronically Stored Information in litigation.

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.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

In association with
Related Topics
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions