One of the most important issues facing GCs today is compliance with electronic data preservation and discovery requirements in litigation, as well as in regulatory investigations. Since the amendments to the Federal Rules went into effect last December, counsel are now required to include electronically stored information in initial disclosures and hold an early pre-discovery conference to agree on what data is and isn't reasonably accessible. As a result of the new rules, discovery requests with respect to electronically stored data are also becoming more complicated. The more complex the request, the more I depend on outside experts to assure me that the processes being used will result in full compliance.

Technology planning gives GCs the ability to properly prepare for e-discovery requests and bring in experts to help along the way–saving time, dollars, many undue headaches and ensuring full compliance. This column focuses on the four main stages of the e-discovery process, including collection, processing, review and production, and how a GC can prepare for each stage.

1. Determine what data to collect.

A GC often gives legal input on the scope of the discovery inquiry and oversees the entire e-discovery process. Internal IT personnel are responsible for preserving and collecting the correct data from various areas such as networks, hard drives, backup tapes, CDs and employee work stations. Often internal IT departments are not able to perform the entire collection due to the sensitivity of the litigation and overall collection inexperience. In these cases, a collection team consisting of internal IT personnel and outside collection experts are assembled to ensure the process is handled appropriately and in a timely manner.

The integrity of the data being collected is vital. Questions will surface at some point in the litigation regarding the approach and techniques of collection and whether data was at all damaged or altered in the process. Bringing in collection experts to handle the bulk of the collection and sensitive collection jobs gives reassurance that the data is intact and all requirements are properly met within the needed time periods.

2. Analyze appropriate processing methods.

After the appropriate data is collected, it is typically filtered and deduped using specialized processing software to reduce the amount of data that will need to be reviewed. Many companies are now handling small amounts of data processing internally, but a general rule of thumb is to outsource a job if several gigabytes of data are collected. Processing equipment is expensive and a waste of money if only minimal processing is performed in-house. Processing professionals can quickly and effectively process data, charging on a per gigabyte basis, and assure the integrity of the chain-of-custody, a critical component in processing data.

Using experienced processing professionals for large processing jobs ensures that you will reduce hours and money in the review phase and keep your litigation on track.

3. Establish your review method.

Regarded as the most expensive and time consuming step of the e-discovery process, reviewing documents can also be viewed as the most important of the e-discovery steps. Organizations often use outside counsel to perform document review, but the GC should be involved in the review planning stage to analyze the software tools being used. Outside counsel may suggest using their existing online review tool, but it is necessary to examine the needs of the specific litigation to determine if another option is better suited.

Having a secure and comprehensive online review tool used by both inside and outside counsel gives GCs the flexibility to run needed reports and keep up-to-speed on the review progress. It also makes sense to have all data in one system and avoid replication of databases in the review process. Using a robust software system that encompasses all of your review needs will help keep review time under control and ensure that only necessary documents are being reviewed by outside counsel, again saving time and money.

4. Decide how to produce your data.

Once all data has been reviewed for responsiveness and privilege, it is produced in a specific format for opposing counsel. The required format should be agreed upon in early e-discovery meetings. Finding a solution ahead of time that performs both review and production and gives flexibility to produce in multiple formats will save both time and steps in the production process. Be sure to find out if your review tool can produce in multiple formats to give you the ease of use needed for large and frequent productions. Also, let your outside counsel know the importance of using one solution for both review and production.

As GCs become more familiar with the new e-discovery rules, it is important to be aware of the requirements and plan ahead for technology needs. Each stage of the e-discovery process encompasses different elements, and GCs need to be able to effectively oversee each stage and rely on discovery experts along the way. Being prepared for e-discovery will save you unnecessary stress and save your organization time and money.

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