By Stan Pierson
In our first article, we discussed this year’s revisions to FRCP 37(e) – set to go into effect in December. The new rule is more about solving problems caused by lost ESI than punishment for the loss, provided parties take reasonable steps to preserve and show good intent. In light of the revisions, how can you ensure you’re taking reasonable steps, preserving ESI as effectively as possible, and staying clear of sanctions in the courtroom?
The New Rule and e-Discovery Today
It’s important to remember that the last major revisions to the Federal Rules of Civil Procedure took place way back in 2006. At that time, the e-discovery industry was still a toddler. Naturally, the rule introduced at that time made parties think hard about their data retention policies.
Today, data volumes have become so big that even the EDRM changed its nomenclature to reflect that the entire e-discovery process begins with proactive information governance. So the need for policies to retain documents obviously still exists—but the game has changed.
So, in light of the revisions, how can you ensure you’re taking reasonable steps, preserving ESI as effectively as possible, and staying clear of sanctions in the courtroom?
Tip #1: Work with a proven team
With the new rule, when ESI turns up missing, the focus is on how the loss can be cured and the case moved forward. This requires cooperation between all parties—as many of the other rules’ revisions do—and begs an important question: how can you move litigation forward when you may have missing information, or the other side is not cooperative?
Start by getting the best and brightest e-discovery people on your side. Involve professionals with verified backgrounds in this space early on; they can help guide your discovery strategy, provide expertise on the right protocols, and get the most out of your data. It’s a good idea to look for industry credentials, or product certifications in your e-discovery tools of choice, when recruiting your team or seeking third-party support.
Tip #2: Know your protocol backward and forward
The Standing Committee report notes that courts will consider “party resources and the proportionality of the efforts to preserve” (Report at 312). If ESI is lost, the court will have to decide if reasonable steps were taken—considering the nature of the case and the party—and whether the ESI can be restored or replaced. They will need to find that you did not take reasonable steps before any punishment can come into play.
So, what is reasonable?
Covering every base is a good first step. Ensure your data retention policy is clearly defined and consistently followed. That way, you’re taking careful measures to ensure relevant ESI isn’t lost.
Also be sure to involve all stakeholders—from IT to marketing—as soon as litigation is anticipated, so they know what’s at stake and are cautious to preserve potentially relevant information. A solid legal hold strategy can help. You can use a consistent tool to send and receive hold and compliance notifications to these teams, and store their responses throughout the lifecycle of each matter. It’ll also help capture your workflows so you can repeat the processes that work next time.
Tip #3: Cooperate at every stage
Talk to opposing counsel early on so you can start agreeing on details like custodians, types of data to collect, and how to go about collecting it. Then, once you have a more well-rounded understanding of the case and the data involved, discuss searching protocols—such as keywords—and, if applicable, analytics tools that will help fast-track your review.
Be as flexible as the case allows, and keep an open mind. The more you can agree on, the better. The other side will have a tough time claiming you acted intentionally to keep the ESI a secret if they know how you are collecting, storing, and analyzing your data—and had a say in determining those processes.
Litigation is inevitably aggressive in many cases, but the last thing judges want to see is fighting in the courtroom. The best way to resolve discovery conflicts is to minimize them from the start.
Tip #4: Track everything
A clearly defined protocol with reasonable justifications is only a piece of the puzzle. Reliable documentation proving you’ve actually followed those protocols is your strongest protection.
Have copies of those data retention policies at the ready to document your pre-litigation steps to preserve information. Then, from the moment your duty is triggered, ensure you’re capturing every step you take with regards to your data. The easiest way to do this is to capture a full audit trail with e-discovery software, logging every step any user takes in the system. If your software is integrated across stages of the e-discovery lifecycle, having a detailed log in a single platform is even easier.
In addition to proving good intent and reasonable measures to preserve, review, and produce data, this audit trail can help you try and find anything that’s missing down the road. To see if you can restore lost data, examine your end-to-end process and look for where there might have been a hole. It’s much easier to correct than to start from scratch.
Tip #5: Do your homework—and remember the lessons
Come prepared with all of these defenses—and whatever other knowledge you can gather. A good place to start is to research the public record for example e-discovery protocols related to similar companies or litigations.
Having a knowledgeable team will also help with a lot of your prep work. Once litigation does occur, you’ll be glad to have your best practices in place beforehand—you won’t have time to juggle both background research and the demands of the case simultaneously. The right amount of expertise can also help you tackle new challenges as they arise.
Remember that judges will be learning along with attorneys—but they want to see parties that are well-prepared and technically savvy.
Overall, more specific, positive guidance for courts on e-discovery matters is a good thing for our industry. Use the next few months to prepare for the updates and ensure your current strategy is aligned with the new perspective.