Working with IT and Records Management to Prepare for eDiscovery: A Checklist
Discovery Digest – Q2 2013
By Daniel Torano, Project Management Coordinator, Deloitte Financial Advisory Services LLP
When in the midst of discovery, it takes preparation, planning and foresight to preserve and collect data that maintains proper chain of custody requirements. It also requires the legal team to work closely with colleagues in IT and records management. Here are some tips for ensuring that eDiscovery processes and procedures will be defensible, cost-effective and efficient. Of course that these are general guidelines and counsel may need to adapt these, depending on the organization and the specific matter.
Assess the overall needs of your case.
- Each case is unique, so resist the urge to jump right in. Take a few moments to consider:
- How many witnesses or potential custodians are involved
- How large the case is, when it comes to the type and quantity of data that may be potentially responsive
- Try to determine how much of that data can be retrieved
- As specifically as you can, develop a list of what you may need from IT and records management in terms of time and personnel
- Think about whether you have colleagues who may have knowledge of the case or the hardware and software involved
- Assess what makes this case unique and may require more of your time and IT’s attention
Disseminate a litigation hold to all potential witnesses and others.
- Identify those who will be affected by the hold
- Determine which computers and other hardware and software that potential witnesses and custodians may have used
- Spell out what information must be retained for the matter at hand.
- Be as specific as possible with your instructions to those impacted by the litigation hold
Contact IT and/or the Records Retention Officer
- Find out who the appropriate contact is
- Be ready to explain any issues you have identified, so that the IT or Records Manager can best help you.
- Provide as much information as possible, so they can help troubleshoot issues you may not even be aware of
- Inform the IT and records officers of any potential litigation or investigation holds
- Be prepared to start a plan about how to preserve witness and custodian data
Determine the relevant data retention cycles and policies that could affect potentially responsive information.
- Find out when back-ups are conducted and which files have been backed up
- Learn the destruction cycle for documents and files that may be potentially relevant and determine whether they have actually been followed
- Work with IT and records management to understand which data may be stored in legacy systems and how that could impact data retention and collection
Create a plan to collect data from potential witnesses and custodians.
- Make an effort to find out if any potential witnesses may be leaving the organization, since their departure could affect normal data retention policies
- Know how deactivated accounts are handled and whether the information stored in those accounts will be recoverable
Plan for the unexpected.
- If a witness or custodian has left the organization, you may need to recover that data outside the normal channels and timelines
- A witness or custodian may either intentionally or unknowingly fail to follow a litigation hold properly, leaving the legal team unsure of what data can be recovered
- A witness or custodian may either inadvertently or deliberately delete data that should have been preserved
- A network or hard drive failure could corrupt data or leave it unrecoverable. This can be a particular concern when witnesses and custodians store files on their local hard drives rather than the network. A hard drive failure can leave data unrecoverable, or at least very expensive to recover.
- A user may violate the organization’s policies and endanger the system and the data that resides on it. This could include accessing forbidden sites, downloading a virus or keeping sensitive materials on their personal computers or mobile devices.
Working with IT and records management is vital to successfully preserving data for lawsuits and investigations and ensuring it won’t be lost. By following the checklist above and becoming well-versed in processes and technology, legal teams can work more closely with their colleagues in other departments to ensure that the litigation or investigation proceeds as smoothly as possible.
About the author:
Dan Torano is a Project Coordinator in the Federal eDiscovery Practice of Deloitte FAS in Arlington, Virginia. Dan’s most recent experience is in consulting and eDiscovery management of both large and small scale eDiscovery cases.
As used in this document, “Deloitte” means Deloitte LLP [and its subsidiaries]. Please see www.deloitte.com/about for a detailed description of the legal structure of Deloitte LLP and its subsidiaries. Certain services may not be available to attest clients under the rules and regulations of public accounting.
While the information in this article may deal with legal issues, it does not constitute legal advice. If you have specific questions related to information discussed in this article, you are encouraged to consult an attorney who can investigate the particular circumstances of your situation.