E-Discovery and Information Management First Steps
Identifying and Preserving Potentially Relevant Electronic
Information
By Laurie A. Weiss
The initial days after learning of an
anticipated litigation matter or
investigation can pose challenges and present
potential risks. Often with tight time
constraints and minimal information,
companies and their counsel must take
steps to understand the issues, identify
and preserve sources of electronically
stored information (ESI), and protect the
company from inadvertent destruction of
relevant information. The checklist of considerations
below is intended to serve as a
quick reference guide for companies and
their counsel. The precise steps taken will
vary depending on the nature of the matter,
the issues presented, and the company’s
resources, practices and technology
infrastructure. Many companies are taking
steps to put response plans in place before
becoming the target of a major litigation
matter or a government investigation. An
effective response plan, one that considers
the issues identified below and is implemented
quickly when litigation or an
investigation is reasonably anticipated, can
have a substantial impact on the ultimate
outcome.
UNDERSTAND SCOPE OF LITIGATION
AND COMMUNICATE WITH
COMPANY REPRESENTATIVES.
Review complaint, summons, subpoena,
formal notice, or other available documentation.
Communicate nature of the litigation
and obligations to corporate representatives
from legal, information technology
(“IT”), risk management, records management,
human resources and/or other
departments.
CONSIDER USE OF OUTSIDE EXPERT.
Consider whether an outside consultant is
advisable for identification and preservation
of potentially relevant information,
including electronically stored information
(“ESI”).
If so, identif y and retain the outside
expert, and include the outside expert in
developing and implementing the data
identification and preservation plan.
IDENTIFY SOURCES OF POTENTIALLY
RELEVANT ESI.
Identify key employees and third parties
most likely to have potentially relevant
data.
Interview IT representatives and other
employees to determine what relevant
information is stored on network email
and non-email accounts, personal computer,
laptops, databases, applicable web
sites, outsourced locations, etc. Gain an
understanding of Company’s IT environment
and infrastructure.
Determine whether potentially relevant
information may be within the individual
employee’s control, such as on personal
digital assistants, flash drives, personal
email accounts, personal cell phones, etc.
TAKE INITIAL STEPS TO PRESERVE
ACTIVE ESI.
Preservation Notice to Employees and
Third Parties.
Issue a written Preservation Notice to
employees who may possess potentially
relevant material, and remember that the
Notice may be discoverable. Include
records manager/coordinators and IT representatives.
Diary for Reminder Notices at
appropriate intervals.
Identify types of materials, including
paper documents and ESI, to be retained
and the employees who may possess such
materials. Also, identify the relevant time
frame to which the preservation obligation
applies.
Consider third parties who may possess
documents and ESI under the Company’s
control and whether
they should receive
the Notice or a letter
requesting preservation.
Consider having
recipients of the
Preservation Notice
acknowledge their
receipt and understanding
of the
memorandum, and
track such acknowledgements.
Develop a plan to
reissue the Preservation
Notice periodically
and to reevaluate
the scope for
necessary alterations
and expansion as
more information
about the litigation
becomes available.
Routine Disposal
Practices.
For key players, suspend routine data disposal
practices, such as email auto-delete
processes, if possible within the information
infrastructure.
Suspend the disposition of relevant
records under the retention schedule.
How to Preserve Various Data Sources.
Consider whether litigation risks and
Company resources justify creating a
forensically sound copy or mirror image
of network email accounts and network
directories of employees likely to have
responsive documents. Segregate and preserve
any copies made in a secure repository.
If employees’ network accounts and
directories are not imaged, develop an
alternative preservation plan for network
data sources. Balance data privacy concerns
against the need to preserve relevant
information quickly.
Consider creating a forensically sound
copy or mirror image of the hard drives of
key players’ desktops or laptops. Determine
appropriate timetable for copying
data, and segregate and preserve any
copies made in a secure repository. If key
players’ hard drives are not imaged, consider
alternative means of preserving relevant
information and develop an alternative
preservation plan. Again, balance data
privacy concerns against the need to preserve
relevant information quickly.
Determine whether potentially relevant
data may exist in databases, such as a document
a management system, and
whether that data may be subject to modification
or deletion. Develop a plan to preserve
unaltered data, which may include
“locking” documents to prevent inadvertent
alteration or deletion.
DEVELOP PLAN FOR NOT REASONABLY
ACCESSIBLE ESI, INCLUDING
BACKUP TAPES AND LEGACY DATA.
Investigate Company’s archival and backup
practices and existence of potentially
relevant legacy data.
Consider whether to continue normal
recycling of backup tapes or identif y specific
backup tape(s) to be withdrawn form
the normal rotation cycle and preserved
for the duration of the litigation or until
an agreement can be reached between the
parties.
CONSIDER DATA
OF TRANSFERRING
AND DEPARTING
EMPLOYEES.
Develop a procedure
for preserving data of
transferring and
departing employees
who may possess
potentially relevant
information.
Image hard drives
before redeployment
or preserve the original
hard drive for the
duration of the litigation.
NEGOTIATE ISSUES
WITH OPPOSING
COUNSEL AS SOON
AS POSSIBLE.
Develop and discuss
a reasonable plan for
preservation with opposing counsel as
early as possible.
The Meet and Confer process can be an
effective tool to limit scope of discovery
and drive desired results.
If an agreement cannot be reached,
consider motion practice to request a protective
order from the court. Volume
drives the cost of electronic discovery, and
a strategic focus on reducing volume as
early as possible, while meeting discovery
obligations, can reduce costs.
DOCUMENT STEPS TAKEN TO
PRESERVE POTENTIALLY RELEVANT
MATERIAL.
Document actions taken and reasons for
those actions, in preparation to explain
and answer questions about the preservation
process.
Contemporaneous documentation of
rationale for decisions may help demonstrate
that reasonable efforts were made in
good faith.
Laurie A. Weiss is a partner in Fulbright
& Jaworski L.L.P.’s San Antonio
office.
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