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The Dark Side of Electronic Discovery

	Without proper planning, the cost of electronic discovery can spiral out of control faster than its paper counterpart. Posted: Feb 04 2003 Albert Barsocchini, Esq. - Electronic Discovery Consultant To date, Case law on electronic discovery has failed to address the most expensive part of electronic discovery, i.e., the cost of an individual (from each of the parties in the litigation) to review and evaluate the potentially massive amount of culled electronic data. So what can businesses and law firms do to get a handle on electronic discovery? 1. Businesses should educate employees about how their electronic trails can be turned into weapons against the company. How using simple rules of objectivity and accuracy can avoid future misinterpretations of an employee's work product. There is no guarantee of confidentiality in any employment setting and all digital communication should be done carefully. 2. Draft a document retention policy that has the following features: Clear purpose; succinct rules; emergency procedures to follow when civil or criminal litigation or prosecution arises; categorize and define the documents that will apply to the policy; define the retention period for each document type; purge all non-essential documents; use technology to define and control the document life cycle; create an evidence preservation and suspension policy; include wiping of unallocated spaces on hard drives; and conduct periodic audits of the written policy to make sure it is actually working. 3. Draft electronic tagging and document description conventions to assist employees in complying with document retention systems such as the automatic purging of documents on key anniversary dates and assistance in future retrieval. 4. Before a crisis or lawsuit hits, the company should know what types of data exist within the organization, where the data is kept, and the filing system used to categorize the data. 5. Eliminate unnecessary backup systems. Redundancy (mirror drives) is better for a disaster recovery than back-up tapes and it eliminates the potential for the abuse of back-up tape in discovery. 6. Use a cooperative, rather than defensive, approach to document retention policy suspensions. Instead of opposing or ignoring letters requesting a suspension of document retention policies because of a pending investigation or lawsuit, engage potential opponents early and often. Put the parties all on the same side of the table and place the problem on the other side of the table. Work cooperatively with potential stakeholders to establish sensible solutions. 7. Communicate early and often with opposing counsel. When electronic data is requested, work out early workable protocols (or show the oppositions unreasonableness in contrast to your reasonableness). Do not depend on one-size fits all rules or cute interpretations of those rules. Rely upon the 3 Cs: Credibility, cooperation, and consensus. Remember, the goal is to avoid the appearance of hiding. 8. Balance the marginal utility of capturing, interpreting, and reviewing an electronic database against the just, speedy, and inexpensive resolution of the underlying dispute. 9. Use sampling techniques (instead of reviewing an entire database, sample certain dates, mailboxes, etc.), to test databases for relevant information to avoid the costs of human review. Albert Barsocchini Go Top