Much has been written regarding the importance of preserving evidence and making sure lawyers and clients appreciate the need to take steps when responding to discovery requests and/or subpoenas so to avoid claims of spoliation. Below are a few specific considerations requiring attention when counsel are asked to assist clients in responding to document requests and/or subpoenas involving electronically stored information (ESI). These considerations are meant as a guide to addressing ESI issues and are not an all-inclusive list as each situation is unique.
1. Identify the Most Knowledgeable Information Technology (IT) Personnel.
While it may go without saying, a thorough ESI preservation and collection effort is only possible if counsel rely on the appropriate information technology (IT) personnel. In many situations, that will involve working with the client’s internal IT staff. However, depending on the size and nature of the client’s business, it may involve working with external IT consultants. If not already known, counsel should immediately request information about the client’s business operations, organization, record-generation practices, and information-systems (IS) architecture to understand the company’s IT/IS systems and to facilitate the preservation and collection of potentially relevant data.
2. Know Where Information Is Maintained.
Working with the client’s IT staff or outside IT consultant, counsel must identify all locations where the company maintains IT infrastructure. Creating an ESI data map will assist counsel and the client as information is preserved, collected, and produced. It is important to identify the location for physical files, electronic files, voicemail, and other applications. Counsel need to understand how the company’s employees work. Do employees work at a central or multiple locations? Are employees allowed to work remotely? Do employees use personal computers or are they issued a company computer? A good understanding of the type of computer systems used by the company is key. A good ESI data map will identify network configuration and set up. Information should also be gathered on the operating system, workstations, laptops, portable storage devices, smartphones, and cloud storage.
3. Understand the Client’s Retention and Destruction Policies.
Does the company presently have a formal document retention policy? If yes, counsel should obtain that policy. If no, has the client explained the procedures the IT staff recommend to ensuring the general maintenance of email and electronic files? In addition, are email messages administratively deleted from the company’s server? Is there a purge schedule? Are files routinely deleted when employees leave or are they reassigned? Are emails or files “archived” off the system? If yes, what is maintained? And where? Understanding the client’s document retention and destruction policies is necessary so that counsel can evaluate and recommend what document-hold policies need to put in place. When litigation is pending or threatened, counsel must also ensure that an appropriate litigation hold memorandum is circulated to the appropriate document custodians.
4. Identify the Custodians Whose ESI Needs to be Preserved and Collected.
Based on the nature of the request, counsel should work with the client to identify a list of personnel whose information may need to be preserved, collected, and produced. In assembling that list, counsel should be prepared to defend how the list was assembled if questioned by opposing counsel and/or the government when responding to a subpoena. Moreover, depending on the nature of the matter, counsel will need to determine whether to seek the cooperation of particular employees in gathering their ESI or whether efforts need to be taken to collect the information without the employee’s knowledge.
5. Establish a Defensible Review Procedure.
Depending on the size and scope of potentially relevant ESI, counsel should evaluate procedures to facilitate review such as technology-assisted review (TAR) or whether to assemble a list of search terms aimed at both identifying responsive and potentially privileged information. As with the list of document custodians, counsel must be prepared to defend the process and analysis that went into document collection and review if no pre-collection agreement with opposing counsel has been reached.
6. Produce Information in the Agreeable Format.
Federal Rule of Civil Procedure 26(f)(3)(c) requires counsel in civil litigation to confer and discuss both preservation of ESI as well as the form or forms in which ESI is to be produced. Keeping in mind the format that ESI will ultimately be produced at the beginning of the preservation and collection process will help counsel avoid unnecessary delay and expense when it comes time to produce information.
—Brian C. Spahn and Bruce A. Knapp, Godfrey & Kahn, S.C., Milwaukee, WI