The age of electronic discovery is here to stay. In today's business world, 90% of all information is in digital form. If you are faced with having to respond to a subpoena or have notice of a potential claim, consider the following to help guide (and protect) you through the process.
- Upon notice of claim, promptly take steps to preserve and maintain all documents or data relating to the matter.
- Evaluate likely sources of responsive documents and data.
- Instruct all relevant offices and off-site storage personnel to locate all requested files.
- Have all files from all offices and locations consolidated in the hands of either your general counsel or a compliance officer.
- Your compliance officer or counsel should interview all personnel who have ever been involved in the matter or had any contact with it about potential loose files, documents, etc… Give all such personnel express instructions regarding document and data retention, including especially electronic.
- Interview appropriate personnel regarding securing all word processing documents.
- Implement a temporary data preservation plan — preserve information on computers, networks and non-privileged e-mail messages, i.e., a "litigation hold."
- Counsel or compliance officer should meet with the Chief Technology Officer or IT Director to ensure implementation of "litigation hold" and to evaluate the role of backup tapes.
- Insure that no laptop computers have taken out of service and/or erased pursuant to a routine rolling replacement policy.
- Clearly communicate to all relevant personnel the importance of collecting and preserving all documents and electronic data related to the matter. Reissue these instructions, as appropriate.
A flurry of activity in the e-discovery arena in the last several years has dramatically changed the landscape with respect to this risky arena. Local court rules and judicial opinions now make it clear that litigants, including prospective litigants, are fully on notice of their responsibility to locate, preserve and produce electronically stored information. A failure to take affirmative steps such as those outlined above quite likely will put your company at risk and could be extremely damaging to the outcome of pending litigation.
Knowing the above tips along with having a strategy for searching, recovering and preserving electronic evidence can save your company time and money, not to mention the potential wrath of an unforgiving judge.