Roundtable Discussion: E-mail management for e-discovery

Q Lamont: How do organizations identify documents potentially related to the case?

A Tidmarsh: First you want to take a wide view of the universe of possible information. EMC’s search technology, which includes a number of different search engines, will search not only the Documentum content management and records management systems, but also "files in the wild" that are either unmanaged or stored in other systems. Once all the potentially relevant information is found and classified, appropriate rules and policies can be applied to that portion of information that relates to a case.

A Gonsowski: The search phase of the e-discovery process is not always well understood, because it represents a different approach from the one found in everyday business operations. Normally, search is used to find the most relevant information to answer a question or find a document of interest. In e-discovery, you need to find everything. Often you need to "show your work," meaning the actual structure of the queries. Recent cases such as Victor Stanley Inc. vs. Creative Pipe Inc. have indicated that the courts may require proof that the search was "reasonable." The search should include any enterprise data system, not just the records management system.

Q Lamont: How do the parties agree on what those queries will be?

A Gonsowski: This process is one of the biggest changes resulting from the Federal Rules of Civil Procedure enacted in December 2006. The two parties are required to sit down at "meet and confer" sessions very early on in the litigation process. In the past, the defendant would use their own search terms and then hand over the results. In order to make the search process transparent, the two parties now have to agree on the search process, including metadata, timelines, date ranges, custodians, forms of production and other parameters.

Q Lamont: Are the queries refined over time?

A Gonsowski: Yes. E-discovery is an iterative process. For example, privileged information can be removed from the information gathered during the broad sweep. Trade secret information can be excluded, and other material may be excluded if it’s not relevant. But throughout this phase, the process needs to be defensible and auditable. The end game from the producing party’s viewpoint is to minimize the amount of information that needs to be reviewed by their attorneys, because that’s an expensive process.

Q Lamont: What if a potentially relevant document has been deleted?

A Joerling: This is where the importance of a stated policy comes into play. As long as you are destroying things in the normal course of business and you did not have a reasonable expectation of litigation, the courts have generally considered deletion to be appropriate. This type of ruling applies both to items deleted as part of a retention schedule, and items deleted because they would not have been considered records in the first place.

A Gonsowski: I agree, but there are some ambiguous areas. For example, a particular e-mail might not have been considered a "record" when it was generated, but in the context of e-discovery, it might be important in proving that two individuals had contact at a certain point in time. E-discovery is very oriented toward timelines, and e-mail messages represent data points along that line. Or, if legislation is pending and a particular individual is key to the case, a hold might need to be placed on all messages sent or received by that individual. But in general, the judge is going to be looking for reasonableness rather than perfection. If you have a good policy, and you can prove you did your best to adhere to that policy, it’s a much better situation than if you don’t have an audit trail to show you took reasonable steps to adhere to the policy.

Q Lamont: Do you see a change in how organizations are viewing e-discovery?

A Gonsowski: Yes, there has been big change, over about the past five to 10 years. Instead of treating e-discovery like a one-time fire drill, organizations are coming to the awareness that it is yet another core business process. There is now an awareness that the traditional aspects of people, process and technology apply to e-discovery just like they apply to enterprise resource planning or other business processes. So, e-discovery is being integrated into the enterprise in a much more proactive way, especially in organizations where litigation is relatively common

The organizations

Clearwell Systems provides the Clearwell E-Discovery Platform, an e-discovery processing, analysis and review product that helps enterprises respond to legal, regulatory and investigative matters. The company partners with EMC to offer that product as part of EMC’s Compliance and eDiscovery solutions

ARMA International is a not-for-profit professional association that addresses issues related to management of records and information

EMC provides hardware and software solutions for managing information infrastructures. The EMC Documentum product family helps companies manage all types of content for records management and retention.