Minding the Three P's of E-Discovery

The electronic discovery process entails many hazards that can cause clients and practitioners to wipe out rather than ride safely to shore.

The 2006 amendments to the Federal Rules of Civil Procedure were intended to provide guidance to parties navigating e-discovery. In reality, judges, litigants, lawyers and technologists are still struggling to frame the discovery boundaries of a vast, ever-expanding world of electronically stored information. Thus, every organization must, to a degree, craft its proactive day-to-day information-management strategy and its reactive litigation approach from an e-discovery standpoint.

Do not panic about embarking on this ride. A legally defensible ESI process can result from minding the "Three P's" -- policies, protocols and preservation. If an organization and its counsel follow these practical tips, they will be best equipped to catch e-discovery's cresting wave.

POLICIES: PROACTIVE PROCEDURES

A proactive records-retention program can enable a much smoother ride once litigation ensues. Once on board, the litigator should inquire into the client's records-retention policy and any related policies as well as its overall compliance with these policies.

Hopefully, the organization has frontloaded some effort to achieve efficiencies and information management benefits from a legally defensible, systematized approach to records retention and destruction. An organization with a pre-existing program can more quickly access ESI in a cost-effective way, which will also allow it to assess the relevant contents of the ESI.

Substantial compliance with a retention program can provide a safe harbor once litigation hits. Indeed, a retention policy is really a destruction policy, "created in part to keep certain information from getting into the hands of others, including the government," the U.S. Supreme Court noted in U.S. v. Arthur Andersen, 544 U.S. 696 (2005). Thus, having an adhered-to policy can serve as a justifiable explanation for why responsive information was not retained.

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Source: law.com
By: Robert D. Brownstone and Juleen Konkel