What is eDiscovery?

eDiscovery is electronic discovery or the electronic part of the discovery process. Narrowly defined, discovery is the phase in a lawsuit in which the parties to that suit exchange information that that will either help or hurt a case. At its core, there is nothing new about this process, but there has been much discussion about it lately. This is because the amount of information that organizations are creating is rapidly expanding and our judiciary recently amended the rules that govern what happens in lawsuits. These changes to the Federal Rules of Civil Procedure (FRCP) received a great deal of press when they were implemented. However, due to the way rulemaking works, we are still some time away from knowing exactly how it will affect requirements for companies.

Can you elaborate on that a bit more?

The buzz about eDiscovery comes from two sources. First, the volumes of electronically stored information (ESI) created by organizations has been exploding for several years now. This means that organizations have much more ESI to contend with and have been struggling with how to make that information work for them. Having that information in a state of readiness is not a top line priority for most companies because it does not help them make money. Lawyers understood early on that this lack of readiness could be exploited for litigation wins, even if the underlying merits of the case did not warrant it. Second, partly in response to the situation described above, the FRCP were amended in 2006 to help guide litigants in terms of their obligations relating to eDiscovery. As with any new set of rules, there remains some question as to how they will be interpreted. Companies looking for bright line rules will be left wanting.

When the FRCP amendments came out 18 months ago, we heard a great deal about how organizations needed to pay more attention to managing their email. Was there more to it?

Yes. Email got the lion’s share of the press because it is the most prevalent information type in most organizations. However, the new rules pertain to all of an organization’s ESI. And part of the beauty of the new rules is that they do not refer to today’s document or media types ,which could become obsolete at any time. Thus, it is an organization’s email, unstructured content, structured content and any other type of ESI that is subject to the rules.

When addressing email, can’t a user or company just choose to archive everything?

First of all, an organization should have an email retention policy that meshes with its retention policies for other document types as well. Second, an organization ought to be developing retention policies for all its workers, not relying on them to set individual policies. As for what the retention policy ought to be, there is no one size fits all approach. Some companies choose to retain everything, have vetted out the issues and decided that it will work for them. Most companies, though, have decided that they want the ability to remove stale content for a variety of reasons. One of these reasons is the reduced storage and reduced eDiscovery costs in having to deal with less information. Add to that the softer benefit of it generally being easier to find a needle in a haystack if there is less hay and you start to see how the majority of organizations have come to this conclusion.

Can you take me through an eDiscovery process? What usually transpires?

Actually, there is a great resource to help explain the workflow of eDiscovery from a nuts and bolts perspective called the Electronic Discovery Reference Model. I urge everyone to visit www. edrm.net to see both a graphical representation of the workflow as well as a commentary fleshing out the various phases of the process.

Is being able to react and react quickly key?

Certainly, and for several reasons. First, once you have an obligation to preserve information, that obligation becomes active immediately. If you know what you have and where you have it, it makes your preservation job much easier to do. The second reason is that the new rules contain early attention mandates which mean that you will have to be able to discuss your ESI earlier in the case than was necessary before. The more that you are able to literately discuss with your opponent what you can provide and what you should not have to provide, the better you will fare with the judge. A third reason is that knowing more about the information relevant to your case can help you make critical case assessments earlier than before. This helps avoid spending a great deal of time and effort preparing for a case just to learn that a key document will strengthen or weaken your case and bring it to settlement later than it ought to have been.

Do only lawyers need to be concerned with eDiscovery?

No. The attorneys are on the front line in eDiscovery disputes, but a full and complete eDiscovery process will necessarily involve several groups. IT must be involved because they own and manage the systems that hold the organization’s information. Often they are the only ones who are able to describe where information is and how it can be accessed. The records management department will need to be involved to describe and defend the organization’s retention and disposition schedules. As we described above, most organizations will want to routinely purge ESI that no longer has business value. This ought to be done pursuant to a routine policy. Finally, the business units involved in the litigation ought to have representation since their business is on the line.

With what have you seen clients struggle?

There are a few areas that seem to hit everyone: information growth, internal hurdles, defining policies and ensuring that the policies are followed; it varies from company to company. Some are very well positioned and others are still coming up to speed.

This sounds as if it is very complex. Are there any references or resources at which a company can look?

There are a great many resources that are available to companies looking for help. The most well known is The Sedona Conference®. It has published The Sedona Principles and The Sedona Guidelines which offer general guidance to companies seeking help. You can find them at www.thesedonaconference. org. Also, www.edrm.net gives a great top level graphic depiction of the eDiscovery workflow as well as substantial commentary underneath to explain the phases in detail.

How does Technology come into play?

Technology can help you apply policy to scale. If you only had 10 emails and five documents per day and only one repository in which to find them, you would not have much trouble getting rid of old content and finding what you need in relatively short order. But when you have multiple systems and an exploding volume of content, it becomes a logistical challenge. The technology that is making the greatest strides today has the ability to manage content in multiple systems but still provide a single pane view of functionality to those who need it.