E-Discovery A Basic Guide
E-Discovery A Basic Guide
If you are a Lotus Notes administrator who spends any of their time managing email, you have probably heard about e-discovery. The need to search old email for specific content for your corporate legal department for the purposes of litigation is the basic core of e-discovery. Most of these requests seem to happen in an â€œemergencyâ€? fashion, putting an extra burden on an already stretched IT department. The lawyers often seem very upset and under extreme pressure to deliver on a tight deadline, which they often pass on to IT. The whole process is often quite stressful, and there is a lot of misunderstanding between legal and IT. The purpose of this short guide is to give IT professionals and particularly Lotus Notes administrators basic information about e-discovery and the process of gathering and producing it. Hopefully, this will help increase understanding among IT and legal workers in the enterprise to increase efficiency and lower stress. It will also help you consider ways to be better prepared to locate documents inthe email datastore.
Before we define discovery, let’s back up a step and define litigation. Litigation is defined as “a legal proceeding in a court; a judicial contest to determine and enforce legal rights.” In other words, litigation is a lawsuit. Litigation has several phases that it passes through as the case develops and is ultimately resolved. One of the phases, which is relatively early in the case development cycle, is discovery. Discovery is the process by which the facts of the case (as opposed to the legal issues) are found out or discovered. If the case involves a person who fell down and got hurt in a parking lot, the documents pertaining to the maintenance and lighting in the parking lot and the injured person’s medical history and pictures of the injury, will be found in discovery and given to each side to review. Lawyers will use the term “produce” documents to mean give over to the other side to review. Document production in discovery is often courtsupervised and considered a very important part of the case. In the past, discovery was conducted completely on paper. The lawyers would go into a particular department of the enterprise and confiscate all physical documents related to a particular case. The documents would be reviewed and turned over to the other side. No more. With so much electronically stored information or ESI, the days of paper are over. Now, all ESI which could contain relevant information to the litigation must be searched and produced. It is this process of holding, collecting and searching ESI that is collectively considered to be e-Discovery.
The challenge is based on two factors.
First, there is a very large amount of data to search in most organizations. Back in the days of paper, there were many fewer documents and therefore much less to review. Now everyone saves everything, and all of it could be relevant. In addition, locating all of the repositories for the data can be a challenge because people archive material to their home computers, use thumb drives, etc. It is difficult to know for sure that all data has been searched for and produced. The other problem is that two sets of people with very different skill sets need to work together effectively to do the e-discovery properly; IT and Legal. IT pros know how the data storage works and where it is located, but they probably donâ€™t know that much about courts and legally relevant documents and court rules pertaining to e-discovery. Legal knows all the court rules and legal issues but does not know how to locate and search ESI for relevant documents. Most lawyers have a very limited understanding of technology in general and probably have no idea how long it takes to locate information. This is where trouble usually happens.
There are a number of things you can do to prepare yourself for this type of challenge.
How IT can help the Lawyers (and themselves)
• Know Your Lawyers. This is the most complicated part of your preparation! • Understand that the lawyers have court-set deadlines to meet to locate, search, review, and turn over to the other side all relevant documents. Failure to meet these deadlines can result in nothing happening to severe sanctions without any ability to predict which result will occur. • Lawyers are specialists in the law, not technology. The only thing they know is that the IT department has the key to the information they need. Assume they know very little about technology of any kind. • Providing information as to which data resides where and how it is retrievable and searchable is the most important function you can provide the legal staff. They are required early in the case at a “meet and confer” session supervised by the judge to draft a discovery plan that states what e-documents will be produced and when. • Bear in mind that each and every document that is found in response to an internal search must be reviewed by a lawyer before it is given over to the other side. This is to prevent the turning over of documents that are irrelevant or those that contain privileged information. Typically, this means that there are a lot of documents to review.
• Know Your Email System. You as the IT professional are the main knowledge source for the legal department to turn to for help in accessing the data they need. Having some idea of where information is stored and on what medium, as well as how long it will take to find it, will help a lot • Know the Basics of Legal Hold. When a litigation commences (or sometimes before then), the legal department will notify you as well as the people in the company whose conduct might be involved to stop deleting or altering email in thea system. This is known as legal hold and it is an essential first step in the e-discovery process. The importance of it for you is to know whether your department is running any type of automatic deletion system. This must be disabled to prevent the loss of documents. • Know Your Data. One of the most helpful things you can do in an e-discovery situation is to help develop the data map. The data map is a resource that lists all of the potential electronic locations to search for.ESI. The legal department is counting on you to know where these are and to help develop a checklist for searching. This list can become essential for the lawyers to demonstrate to the court where they looked and that the search was conducted thoroughly and systematically. • Know Your Software Options. Ideally, your organization has already purchased and implemented an email archiving product such as ReduceMail Pro Archive that can make the job of searching and retrieving relevant documents much simpler. If only relevant documents have been retained and archived (and the rest deleted) pursuant to a regular schedule, then the pool of documents available to be produced is smaller and quicker to access. However, very few organizations have in fact taken this step. As a result, IT staff need to know where to turn for the tools to retrieve the relevant e-discovery documents.
ReduceMail Pro Can Help
ReduceMail Pro provides a variety of tools to help you through this process and to help you build a better mail system for the future. ReduceMail Pro Archive can help organizations prepare for e-discovery and other mail management challenges by archiving all mail. This helps you locate information more quickly and effectively for e-dicovery, while also providing you with a more robust mail system. Storage costs are reduced, back up times shrink, and you wonâ€™t have to keep adding space once archiving is regularly performed. ReduceMail Pro e-Discovery is a tool for organizations that did not have archiving in place prior to an e-discovey request. It assists your organization by providing an effective means to place legal hold, collect, and search the email datastore for relevant content. Best of all, it is designed for use by the legal department, helping to conserve IT resources and educate lawyers as they help themselves to the data they need.
An ebook by Avalon Business Systems Inc.