By Nancy Patton
If you've been following my posts, you already know that I've chosen to focus this blog series on the Who, What, Where, When, and Why of the E-Discovery revolution. Over the past several months, the first three entries on “The Who" (part 1,part 2, part 3) have been completed. Now it's time to move onto “The What."
In my roles as an implementation project manager on Exterro's client success team, and now as a member of the solutions consulting team, I've been involved in a lot of conversations regarding what we are we looking for in E-Discovery. Using FRCP Rule 34(a) as a reference, parties may be requested:
(1) to produce and permit the requesting party or its representative to inspect, copy, test, or sample the following items in the responding party's possession, custody, or control: (A) any designated documents or electronically stored information—including writings, drawings, graphs, charts, photographs, sound recordings, images, and other data or data compilations—stored in any medium from which information can be obtained either directly or, if necessary, after translation by the responding party into a reasonably usable form; or (B) any designated tangible things; or (2) to permit entry onto designated land or other property possessed or controlled by the responding party, so that the requesting party may inspect, measure, survey, photograph, test, or sample the property or any designated object or operation on it.
That is A LOT of “What!" And it varies dramatically from one client to another.
One example is a long standing client of Exterro's that has a mature and robust e-discovery function with dedicated resources in both legal and IT (both teams do their job very well). The “What" that they are focused is almost exclusively email. They are – for the most part – ignoring desktops/laptops, mobile devices, network shares, repositories, databases, and a myriad of other data sources. Now one could argue that “the good stuff" is primarily found in email. It's where a lot of extemporaneous conversations take place, and it's where employees might get a bit casual and write something in the heat of the moment, which perhaps they wish they could take back a few hours later. (Ever heed that advice to sleep on an emotionally-charged email before sending it?)
Others cast a very wide net. They seek a lot of “What"—including emails, laptops, mobile devices, network shares, databases, onsite and cloud-based document repositories, Google docs, SharePoint, claims systems, back-up tapes, paper, and more. One recent client needs a way to retrieve and review police cam footage. A unique and special “What" indeed!
Most companies land somewhere in between, definitely focused on email and often focused on more. There's no right or wrong answer (don't you wish there was?!) other than to make sure you are complying with the request for production of information and not overlooking anything critical to the response.
So how do you begin to really understand the “What" and how it pertains to litigation, compliance, and regulatory requests? And more importantly, how do you avoid a fire drill each and every time the “What" comes up? If you haven't already thought about it, perhaps start with a simple data map. This is nothing terribly new and inventive, but let's walk through it just the same.
First, remember those great relationships you are cultivating with IT—you can use these professional alliances to help with your data map, as well as other corporate resources you likely have access to like organizational charts and employee lists.
Then take a step back and look at the types of requests you receive. Most companies are responding to the same claims over and over again. Pharmaceutical clients often face the claim of, “your drug hurt me." Product defect. Same with automobile manufacturers or other companies in that sell consumer goods. A client who makes things people use outdoors (watercraft, ATV's, road bikes) gets twenty-plus product defect claims every week. Same claim, same ESI. So begin there: is there a pattern to the litigation; are the claims similar; am I just looking for the same ESI (or something pretty close) over and over again?
Now, begin recording the data sources where this information exists and begin tracking details about the data sources. Who is responsible for them? How often are they backed up? Are they subject to auto-deletion routines? Are they a successor system, and if so, what is the legacy system? Where in the organization do they reside? Is the data on them encrypted? How easy or hard is it to get to the data? What business unit(s) or departments contribute to the data sources? How often is it used in litigation? Is it a primary data source or a secondary data source to your discovery efforts? Your new friends in IT can help you with a lot of this information, so go ask them! (People love to help … really, they do!)
After you've gathered this information, then you can begin keeping track of it. There is technology to support this type of data mapping exercise, or quite frankly, Excel will work too, at least when you are initially getting started. Just be sure to keep it updated and evergreen.
The organizational structure will also play a role in your data map. Which departments are most likely to have the type of data you are looking for, and then, of course, which individuals (i.e., custodians) within those departments have the data you are looking for? With larger companies, it may become challenging to drill down to exactly who has the information, so maybe you look to cast a wider net and focus on departments or business units. And this is a perfectly fine approach. Be sure to have an advocate in those departments so that when you do need specific information, you have someone to ask.
Business units or departments typically align closely to the data sources, so you can easily record these associations via your data map. When it's time to grapple with the “What" your data map will guide the way. It'll be worth the time and effort because you will have built a resource you can use reliably and repeatedly.
There's more to say about the “What" so stay tuned until next month.… In the meantime: Download Exterro's E-Discovery Action Plan to help optimize your E-Discovery process.