In the old days, plaintiffs would request business records from boxes in dusty warehouses. Attorneys would then review an inventory list of the boxes and pull those that were potentially relevant. Today, employees organize their own electronic data, but neither the records manager nor the IT representatives understand what each individual is really doing. This is the world of "electronically stored information" (ESI). The following article is designed to better equip you to evaluate your current environment and establish routine processes so that you are prepared the next time ESI is sought.
1) Be Proactive
Proactive steps are critical in preparing for electronic discovery. Looking at the types of documents you have and gaining an understanding of the various locations where data is stored will prove beneficial if and when litigation or a regulatory matter arises.
Step 1 - ESI Task Force
Establish an ESI task force comprised of members from the legal department, IT, records, outside counsel and an ESI vendor. This team should begin by comparing paper retention periods to that of electronic data. In addition, they should also familiarize themselves with the network environment and the appropriate locations to preserve and collect data when needed. The team should then focus on streamlining and minimizing the preservation and collection process, and removing personal and administrative garbage from business records.
Step 2 - Evaluation of Network Configuration
Create/Maintain a diagram of the network environment. This will assist in implementing preservation holds. When creating this diagram it is important to consider:
Home computers - Do employees have information at home? Consider what happens to proprietary information if the employee donates or sells the computer, and what if the employee leaves the organization?
VPN connections - Can employees use any computer (i.e. hotel business centers or homes) to access their files and email?
PDA devices - Does the company provide PDA devices such as BlackBerrys or Trios? How is the data transmitted?
Instant Messenger - Is Instant Messenger backed up?
Laptops for departing employees - Are departing employees allowed to take their laptop? Allowing them to leave with computer equipment may subject you to explaining why you let them take the information and, later, trying to recover the computer to produce data. There may also be issues with claiming privilege or trade secrets if departing employees are allowed to maintain proprietary information. Furthermore, proprietary information may become broadcasted across the Internet if the computer is improperly discarded.
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