Making E-Discovery the New Deal

Pretty dramatic stuff. But they go on to sharpen the e-discovery edge: “Voice traffic can take many forms, from individual calls made between traders, to ‘party line-style’ talks on a turret system that connects people to the trading floor, and voicemails which are increasingly being sent and stored as email attachments in a unified messaging system.” Here’s the important part: “All of these communications are part of the electronic record of a company’s activity, and they are subject to the same review and discovery as any other evidence.In fact, the 2006 changes to the Federal Rules of Civil Procedure even spelled this out in Rule 34(a), which specifically noted “sound recordings” as a type of electronically stored information (ESI). It is in the review and analysis phases of the EDRM that the differences between voice and textual electronic data really arise. While there have been technical methods for searching electronic text for decades, reliable methods for doing this with voice are relatively new. These technologies do exist today, and they must be considered a vital part of any company’s voice compliance system.” How’d you like to reveal your employees’ telephone calls in a court of law? And I don’t mean, the “hey, let’s get lunch at Izzy Kadetz’s today”-type of conversation… although that kind of noise and inconsequential banter can overburden the best management system. (BTW, if you’re ever in Cincinnati, go to Izzy Kadetz for a reuben with slaw and russian dressing and a latke. You will thank me.)

On Being Proactive

You hear this a lot in e-discovery circles (and yes, there are some of those. I have picked up on e-discovery as sort of a hobby, thanks to great mentors such as Jan Scholtes at ZyLab): There’s a movement afoot to create an active “activity” within organizations to prepare for litigation in advance. It’s pretty much a foregone conclusion that preparation is better than reaction. But it’s all too common that organizations wait until they’re stung before they swat. In Sherpa’s article, they point this out:

“E-discovery search and collection is part of a larger information governance effort. Ideally, policy and process should be in place long before litigation strikes; the more litigious a company, the more important it becomes to establish and document overall policy—especially rules for retention and defensible deletion. Another crucial step is to build a team with stakeholders who can collaborate on strategies for preservation, litigation hold and collection. To avoid last-minute scrambles, keep data maps and system inventory updated. Lastly, the right resources, software, vendors and personnel should already be identified and functional.”

Sounds like sound advice to me. But they go on: “You cannot search or collect ESI that is not there. Deletion and wiping activities are often scrutinized by the courts in an adverse manner, which could negatively impact your case. Well-documented policies should be in place to outline how both automated and manual deletion will be disabled in the event of litigation. The policy and the applications that support it should be flexible enough to issue legal holds as well as halt deletion based on custodian, data store, date range or all the above. Verifying and assessing of all these steps is central to defensibility.

“Knowledge and planning reduces pain and disruption in the initial stages of e-discovery. Be organized in your approach, and have the correct resources and tools in place while working together with a well-chosen team to create policies specific to your organization. Being proactive and thorough during collections will lead not only to savings, but also will provide peace of mind.”

Peace of mind. How cool is that? I’m writing this a few days before Christmas, and the idea of “peace” is an especially meaningful concept right now. There is no doubt that the fear and avoidance of litigation is a painful challenge for corporations. And it’s getting worse.

So being prepared for e-discovery is the key to solving the difficult and sometimes business-ending result. So preparation, planning and (yes) having some technology in place ahead of time is key to solving the threat of litigation. It will come, make no doubt. The only question is how well prepared you will be. FTI provides an interesting graphic in these pages that sort of charts out how the e-discovery path takes place in real-life. Follow that graphic to see what steps are necessary to get from the batting cage to home base. It always helps to follow a map. I recommend it.

On the following pages, you will also learn several methods and means to create an e-discovery foundation, and also how to begin a strategy to create a successful e-discovery outcome.

Yes, it does seem like a first-world problem. But make no mistake: Being prepared for civil (and criminal) litigation is a key part of the current operating procedure for any company today. And, besides that, it’s more than a “big company” issue. ANY organization is exposed to a variety of threats, from contract negotiations to internal HR and policy issues. So don’t think “it won’t happen to me.” Because it probably will. These solutions partners—Sherpa, Nexidia, Accusoft and FTI—can help you prepare for the worst and best outcomes.