KILPATRICK TOWNSEND EDISCOVERY AND INFORMATION MANAGEMENT

The global volume of electronically stored information (ESI) increased 48% between 2011 and 2012—to 2.7 zettabytes (or 2.7 billion terabytes). [1] The more data that an organization has in storage, the more data it will need to collect, process, and review during litigation. As a result, the more discovery will cost, the longer it will take, and the more disruption there will be to the company’s business teams. In fact, a recent study conducted by the RAND Institute for Civil Justice found that the median cost of eDiscovery (including the collection, processing, review and production) is $1.8 million. [2]

As a result of the explosive growth of ESI, the management of electronic information has become a critical issue with significant business, legal, and technology ramifications. At Kilpatrick Townsend, we have a dedicated team of litigators, paralegals, and Litigation Support specialists to provide the counsel, experience, and tools needed to manage electronic information and eDiscovery efficiently, cost-effectively and defensibly.

Moreover, because we believe that “a rising tide lifts all boats,” our eDiscovery team is committed to making available to our clients, colleagues and peers training and educational resources regarding eDiscovery. As one example, we are launching this regular eNewsletter to identify, in a quick and easy to read format, Tips and Best Practices for managing ESI and eDiscovery. This inaugural eNewsletter addresses Litigation Readiness Planning—the practice of proactively taking control of the organization’s ESI so that it will be better prepared for the next litigation matter.

Litigation Readiness:  “For every minute spent in organizing, an hour is earned.”

— Benjamin Franklin

In this eNewsletter, we will discuss:

§   “Litigation Readiness Planning” in the Context of eDiscovery

§   The Features of an Effective Litigation Readiness Plan

 

LITIGATION READINESS PLANNING IN THE CONTEXT OF EDISCOVERY

Litigation Readiness Planning is the process of proactively developing and leveraging standard operating procedures (SOPs) and best practices for the purpose of taking control of the organization’s data and potential evidence—so that when litigation arises, the organization is prepared to identify, preserve and collect potentially relevant evidence in an efficient, effective and defensible manner. A Litigation Readiness Plan that intelligently manages data and potential evidence with SOPs and best practices will, during litigation:

§   Simplify the process of educating outside counsel regarding the company’s potential custodians, data sources, and ESI;

§   Facilitate communication between in-house counsel, IT, outside counsel and custodians;

§   Make collection of relevant evidence more efficient;

§   Reduce case specific collection and processing costs;

§   Encourage the re-use of outside counsel work product;

§   Facilitate compliance with preservation obligations and strategies;

§   Facilitate compliance with ethical and legal obligations; and

§   Reduce risk of spoliation and/or discovery motions and their associated costs, delay and distraction.

In a nutshell, Litigation Readiness Planning will help ensure that your organization is better prepared to manage eDiscovery effectively, efficiently and defensibly; thereby, reducing cost, risk and distraction.

 

THE FEATURES OF AN EFFECTIVE LITIGATION READINESS PLAN

In a typical federal litigation matter, eDiscovery is time-consuming, disruptive, expensive, and complex. This is due, in part, to the many variables involved, including the company’s litigation profile, litigation strategy, staffing constraints, business pressures, corporate culture, motivations of the opposing party, etc. The challenge for any organization is to find the right balance of technology, people and processes to manage its eDiscovery in a cost-efficient and defensible manner.

While there is no “one-size-fits-all” solution, effective Litigation Readiness Plans typically address the following:

1. Intelligent Data Management

2. Collaboration Between Legal, IT and Records Management Departments

3. Defined Best Practices and SOPs

4. eDiscovery “Guru”

5. “After Action Reviews”

6. Vendor Management

1. Intelligent Data Management

As noted above, the volume of digital data is increasing at an astronomical rate (48% increase in volume between 2011 and 2012). While companies cannot stop the growth of ESI, they can implement SOPs and best practices for intelligently managing data in ways that will make future discovery easier and less expensive.

The cost and frustration that many litigants experience with eDiscovery is driven by (a) the volume of data collected and (b) the inefficient identification of relevant data. Intelligent data management addresses both of these drivers by reducing the volume of non-relevant ESI retained by the organization and by helping the organization know what data is stored where.

It should come as no surprise that the volume of ESI collected during litigation directly impacts the overall cost of the litigation. This is true because the volume of ESI collected impacts the cost of:

§   Collection;

§   Processing;

§   Reviewing;

§   Hosting; and

§   Managing the data.

Document retention programs are very effective methods of controlling the volume of data retained by the organization (and thus subject to collection during discovery)—provided they are logical and followed. Effective retention programs are the result of collaboration between Records Management, Legal, IT and the relevant business teams and reflect appreciation of the fact that poor data management impacts more than the Legal’s litigation budget. Simply, effective document retention programs cannot be developed in a silo but require contribution from each of the affected groups as to what data is being generated within the organization, what data should be retained (vs. what data is actually being retained), how long data should be retained, and where and in what format the data should be stored.

The second aspect of intelligent data management is knowing what data is stored where; that is, documented data storage. A “data map” identifies:

§   the organization’s information systems (e.g., physical servers, virtual servers, networks, third-party hosted systems, backup systems, archival systems, legacy systems, desktops, databases, etc.);

§   key information regarding those systems (e.g., the nature of the data stored, the system name, description, owner, platform type, location, system dependencies, format of data stored, reporting capabilities, backup processes and schedules, etc.);

§   business processes, departments, teams and/or groups that use those systems;

§   how information flows through the systems (i.e., identifies where business critical information is initiated, who processes the information and in what systems it may be stored);

§   off-site storage locations; and

§   points of contact for implementing and ensuring compliance with litigation hold notices.

A data map does not have to be complicated or fancy to be effective. A basic spreadsheet that contains the information listed above should be sufficient to enable the organization to identify the location, accessibility and format of potentially responsive, relevant ESI so that, if/when litigation is filed or reasonably anticipated, the company can:

§   identify and collect relevant evidence in a timely and efficient manner;

§   minimize the disruption to the business, and;

§   reduce the amount of non-relevant data collected.

2. Collaboration Between Legal, IT and Records Management Departments

Organizations that encourage collaboration and partnering relationships between their Legal, IT and Records Management departments such that these groups understand and appreciate the legal, ethical and business obligations imposed on each, are more likely to have efficient data management, improved infrastructure and technology decision-making, and more efficient identification, preservation and collection of ESI.

To encourage collaboration between these groups, consider:

§   hosting workshops to discuss the mechanics of discovery, including legal obligations, scheduling issues, and technical capabilities;

§   establishing an eDiscovery team that includes knowledgeable representatives from each group;

§   team building efforts; and

§   identifying and training an IT representative to serve as the company’s Rule 30(b)(6) designee on eDiscovery issues.

3. Defined Best Practices and SOPs to Identify, Preserve and Collect Relevant Evidence

Effective Litigation Readiness Planning includes developing written practices, procedures and document templates, outlining the steps, roles and responsibilities involved in identifying, preserving and collecting potentially relevant evidence. By taking the time to develop and vet these materials now, when litigation does arise, the organization will be able to quickly move forward with executable preservation and discovery plans—without being stuck in the “data weeds.”

4. eDiscovery “Guru(s)”

In connection with developing best practices and SOPs, it is helpful to identify the company’s eDiscovery “Guru(s)”. Regardless as to whether this is an individual, committee or department, having an eDiscovery Guru who understands the company’s information systems, [actual] document/data retention practices, and corporate culture will:

§   Provide greater transparency to the discovery process;

§   Facilitate clear communication between in-house counsel, IT, records management, business teams and outside counsel regarding what ESI is potentially relevant, where it is stored and its accessibility;

§   Provide a point of control/consistency for the processes and underlying technologies;

§   Improve infrastructure and technology decision-making;

§   Improve budget control; and

§   Improve the ability to identify and respond to risk.

5. After Action Reviews

Litigation Readiness Planning should also include a review of past discovery experiences to determine what worked well, why it worked well, and potential areas for improvement—because “[t]hose who cannot remember the past are condemned to repeat it.” [3] Conducting regular “After Action Reviews” (AARs) at the conclusion of each litigation matter and/or at the conclusion of key stages in a case will enable the organization to rationally evaluate its processes and procedures, including identifying any challenges the organization faced in identifying relevant custodians and data sources and in collecting data. In addition, the AAR will help in identifying any “pressure points” in the discovery process; that is, any decisions that resulted in significantly higher expenses/longer delay or that resulted in significantly reduced costs or improved response time.

6. Vendor Management

Finally, effective Litigation Readiness Planning includes vendor management. That is, the designation of a core group of “go to” eDiscovery vendors. Organizations that have preferred relationships with a defined group of eDiscovery vendors are more likely to have vendors with institutional knowledge and appreciation of the organization’s eDiscovery and information management practices, policies, and preferences. As a result, they are more likely to have vendors who are also effective members of the eDiscovery team.

Conclusion

Without a doubt, eDiscovery is time-consuming, disruptive, and expensive. However, the time and resources that an organization invests today to find the right balance of technology, people and procedures to manage its ESI will pay dividends in the next litigation matter.

“If I had eight hours to chop down a tree, I’d spend six sharpening my axe.”

— Abraham Lincoln



[1] How to Lower e-Discovery Costs, Deloitte Insights, http://deloitte.wsj.com/cio/2013/01/07/how-to-lower-e-discovery-costs/ (Jan. 7, 2013) (last visited Feb. 27, 2013).

[2] Pace, N., Zakaras, L., Where the Money Goes:  Understanding Litigant Expenditures for Producing Electronic Discovery, Rand Corporation http://www.rand.org/content/dam/rand/pubs/monographs/2012/RAND_MG1208.pdf, at 17 (Sept. 2012). In the study, RAND collected data on 57 lawsuits and regulatory investigations from “eight very large companies” across a variety of industries and litigation matters. (Id. at xiii.)

[3] George Santayana, Reason in Common Sense, Vol. 1 of The Life of Reason (1905).

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IP Section of North Carolina Bar Association awarded the firm with its 2016 Pro Bono Law Firm Award | Education Justice Initiative.