A growing proportion of lawsuits require the production of copies of electronically stored information (ESI). Email is the most important type of ESI, followed by instant messages, CRM databases, spreadsheets, PowerPoint presentations, word processing documents, and so on.

As a result, IT staff must now provide timely assistance in producing the data. Until several years ago, IT was only rarely involved in litigation support. The new responsibility is typically extremely disruptive to IT staff, and also very expensive.

This report reviews the state of current U.S. federal laws relating to electronic discovery, explains the problems that have arisen, and summarizes current thinking on relevant best practices. We focus on the perspective of IT staff and the actions they should undertake. The topics covered are:

• The established discovery process in federal courts
• Recent updates to American litigation procedures providing for e-discovery
• The biggest problems of e-discovery
• Best practices for e-discovery: recommendations on what organizations should do to address the challenges of e-discovery

Report 761, 20 pages.

A Sample of Best Practices

The Best Practices section provides a wide variety of recommendations. Illustrative recommendations follow:

• Organizations must implement policies and procedures to be followed when a demand is received for the production of information, especially electronically stored information. This will enable the requests to be addressed thoroughly and quickly.
• Before any demand has been received, a company should have identified all system data, its location and formats, the IT and records managers who are responsible for administering the data, and associated archiving, backup, and restoration processes.
• It is a mistake to archive everything, and it is a mistake to keep archived material forever.
• During the “meet and confer” session required by the federal rules, ask the other party to provide a network map of its systems and to describe all relevant archiving and backup processes and custodians. Ask opposing counsel to certify the responses.
• Agree with opposing counsel on how to handle attorney-client privileged or company-confidential information that has been inadvertently disclosed.

Table of Contents

Executive Summary
The Structure of U.S. Lawsuits
    Procedural Rules
    Federal Rules of Civil Procedure (FRCP)
    Legal Discovery and E-Discovery
    FRCP Rule 26
Modernization: Providing for E-Discovery
    Background
        Problems Presented by Electronic Documents
        December 2006 Updates to FRCP
        Electronically Stored Information
    FRCP Rule 26(f)
        The Meet and Confer Session
        Frank Disclosure
        Discovery Requests Should Be Relevant
        ESI Should Be Reasonably Accessible
        Potentially Relevant ESI Must Be Preserved
        Court Resolves Discovery Disputes
    Contents of a Discovery Plan
    Timetable and Deadlines
The Biggest Problems of E-Discovery
The Need to Prepare Ahead for E-Discovery
    Special Considerations for Small Organizations
Best Practices for E-Discovery
    Appropriate Role of IT
    Determine What Should Be Archived
    Define, Implement Retention Policy
    Key Preparation Tasks for 26(f) Meetings
        Identify or Develop Network Map
        Describe Archiving, Backup, Disaster Recovery Systems
        Prepare Preservation Systems
        Identify Privileged Material
        Identify Key People
        Define IT E-Discovery Czar
        Install E-Discovery Support Tools
        Don’t Restore Data Until After Meet and Confer
    Questions to Ask in a 26(f) Session
        Core Questions
        Methods of Collection
        Deliberately Disclosed Privileged Information
        Inadvertently Disclosed Privileged Information
        Shifting the Cost
    ESI Accessibility
        Material Likely to Be Considered Accessible
        Material Not Likely to Be Considered Accessible
    If You Receive Discovery ESI
        Seek Convenient, Searchable Formats
    If You Produce Discovery ESI
        Avoid Unduly Broad Requests
        Ensure Deadlines Are Reasonable
        Reporting
        Seek Convenient Formats
Credits