Are you eDiscovery ready?

 

Be proactive, not reactive. Waiting until a legal hold notice comes across your desk is not the time to prepare for an eDiscovery request. The law requires that a company preserves its data as soon as litigation is reasonably anticipated, but even this isn’t the best time to prepare for eDiscovery. A company has its best chance of successfully defending itself in court if it prepares for legal action long before it’s expected to happen.

Preparing for a potential eDiscovery request starts with a document retention policy. A document management policy will not only save you time if you face an eDiscovery request, it will also save your company money.

Knowing the document retention laws governing your business is the best place to start when creating a document retention policy. What are the federal laws and are there other laws specific to your industry? Are you required to store your data for a specific period of time or only if litigation is anticipated? If your company isn’t governed by any additional laws, then you should set a timetable for purging emails, for example every 90 days. A document retention policy which requires all company emails be stored indefinitely will not only be expensive because of the cost of server space but also if all of it then needs to be reviewed in the case of litigation.

Your eDiscovery preparedness will be tested if a discovery request is issued to your company. Now is the time to suspend your scheduled document purging and inform relevant staff of the legal hold notice to ensure they don’t inadvertently – or even deliberately – delete any electronically stored information (ESI). You will have only a short time to provide relevant ESI to the opposing party. You should know exactly where your ESI is stored and be able to retrieve and search it easily. A mad scramble to find your ESI and determine what you have or haven’t stored won’t be looked on favourably by a judge.

Teamwork and training is a must. Your IT team may not be legal experts but they should have a plan in place to deal with a potential eDiscovery request. They must also be prepared to work with the legal team dealing with your document retrieval and review. IT may not be used to being told how to run their side of things but they should get used to it should your company face a discovery request, as your legal team will be instructing IT on what ESI to retrieve and when and what format it should be in. The outlay to train IT in dealing with eDiscovery as well as hiring discovery legal experts might seem prohibitive but it won’t seem excessive compared to potential sanctions if you can’t meet a discovery request.

Have you faced an eDiscovery request before? How did you handle it and do you think there are areas you could improve on if there is a next time? I would love to hear your thoughts in the comments section below.