This week we are posting an excerpt from our recently published EDRM Buyer’s Guide; a phase-by phase walkthrough and checklist created by a former Litigation Project Manager using guidelines developed during implementation of a top oil and gas company’s e-discovery program. The Guide is designed to help stakeholders evaluate software and workflow solutions at each phase of the e-discovery process in a neutral way and contains advisory sections on everything from information security to considerations when TIFFing documents. We will be posting excerpts from both the long form and checklist portions of the guide every few weeks – moving from left to right along the Electronic Data Reference Model [EDRM.NET]. This week we are focusing on EDRM Phase 2; “Preservation” which includes data isolation and notification to appropriate parties that data related to an upcoming lawsuit must be preserved.
The preservation phase of the EDRM has been in the news frequently in the last few months – largely due to its role in the proposed amendments to the Federal Rules of Civil Procedure. Amendments proponents say preservation costs and obligations are spiraling out of control and that the duty to preserve can sometimes attach too early. Skeptics counter that the proportionality and reasonableness edicts already present in the Federal Rules should be enough to keep this phase of discovery under control and moreover that the judicious use of technology should ease many concerns surrounding preservation. However, as it stands the preservation stage of e-discovery is one of the most important and difficult to navigate.
As we all know the law says that the duty to start preserving information related to a matter arises when litigation is ‘reasonably anticipated’. So for example, the moment a PG&E pipeline blew a hole the size of four city blocks into a quiet neighborhood in San Bruno, CA, killing 8 people and injuring many others, PG&E was on notice that it would be involved in litigation even though a complaint hadn’t been filed.
When a party is on notice that it will be involved in litigation, the duty to preserve is triggered – meaning the party has to turn off the shredder and the auto delete settings and start saving documents. The largest, most important part of this preservation functionality is the Litigation Hold System. This piece of the software comes into play the moment litigation is contemplated by the parties and thus should lay the foundation for a highly organized and efficient case work flow. Litigation hold functionality should be fully integrated and not require third-party add-ons. This is because integration provides the benefit of centralized management of all custodians and eliminates the complexity and cost of introducing a distinct system into the IT environment.
Some essential components of a comprehensive litigation hold system include:
- Up to the minute progress tracking of all statuses within the matter (including custodians and IT specific managers or data owners)
- Optional workflow approval sequence for attorney or paralegal review
- Templates and other customization tools to increase efficiency
- Distribution and management of attachments and custodian interview Q&A recording and support
- The system should be able to produce electronic and hard copy reports for use internally or with external parties
With this type of Litigation Hold system in place, the duty to preserve becomes much less onerous and worries about failing to save crucial data are eased. The preservation phase may never be simple or clear-cut, but technology can truly help parties grapple with its obligations. Whether or not the amendments to the FRCP pass, it has become necessary for litigants to use these types of technological aids to stay on top of the duty to preserve.