Teamwork is one of the critical building blocks for handling eDiscovery requests for in-house talent. Without teamwork, time, expense, stress and risk can find their way into the collection processes. Additionally, having full cooperation among team members is essential in order to avoid disruption and chaos in critical day to day business operations. This article will highlight the process of building a solid in-house eDiscovery team by placing importance on collaboration and teamwork.
There is a legally-mandated duty imposed upon opposing parties by the Federal Rules of Civil Procedure, specifically the 26(f) meet-and-confer guidelines. There are many resources covering this topic with knowledgeable commentary, but less prevalent in the literature is advice on creating and deploying an internal eDiscovery team to help with in-house collections.
The goal of an effective eDiscovery collection is to help the process run smoothly while reducing cost, friction, and potential liability or risk. To have a trouble-free process in place, two important components must be present – 1.) Proactive planning, and 2.) The practical necessity of implementation. Collaboration, among all, is key in both areas.
Defining information governance policies
Many organizations grow organically and never have the time or the impetus to define their formal information governance policies. Yet, these policies are essential when preparing for the defensibility and effectiveness of any type of search or collection, not just eDiscovery. It is very helpful in any company, let alone those under the threat of litigation, to have practical, operative plans in place to manage their information assets. Preemptively strategizing is essential; once the threat (be it impending litigation, subpoena, FIOA, compliance, etc.) becomes a reality, it may be too late to follow an optimal approach. This is the proactive aspect of information governance planning and the formation of a wide ranging team collaborating with each other is essential to success of any deployment effort.
The planning phase
In the planning phase, the creation of policy and definition of an overall information governance strategy is paramount and input is needed from representatives in critical departments. The right mix of expertise – business needs, technical experience, records management and legal understanding of requirements – should be present and have the influence to force buy-in of policy, including an eDiscovery plan. Other types of planning can and should include defensible deletion, internet use strategies, security assessments, data mapping, and with all the above being well documented, audited and communicated to staff.
Regular team meetings
This information governance group should meet regularly, ideally beginning with a realistic assessment of the current state of process, technology and requirements (regulatory or otherwise) for the organization. This team should have a hand in crafting strategy before moving on to overseeing deployment of policy, selection of technology, and personnel. The members should meet regularly to discuss and organize auditing and any policy changes that are necessitated by new technology, regulation, or business needs.
Implementation of eDiscovery plan
Once litigation (or subpoena) becomes a reality, a smaller, more nimble team should be formed to organize and execute the eDiscovery plan for the matter at hand. It is essential that both legal and IT are represented in the lineup and that they understand each other’s processes, tools, syntax, data maps and restrictions. As a recent article noted, once litigation is anticipated, the team should work together to:
- Define the scope and requirements
- Identify relevant custodians
- Initiate and manage legal holds
- Locate potential sources of ESI, whether active, legacy, or backup
- Address outliers such as encrypted files or corrupt data stores
- Search, filter, and collect relevant data
- Anticipate potential problems
- Document and validate the methodology
Provide constant feedback
To effectively manage the process, an eDiscovery liaison should be at the forefront to provide communication and feedback between the critical legal and IT functions. This key resource should guide the process, establish parameters, protect defensibility, and inform 26(f) meet-and-confer sessions. A successful liaison will understand the structure of the company, be knowledgeable about the matter at hand, and have good judgment to make prompt decisions while balancing the constraints of technology, litigation and personnel.
With a collaborative team in place, your company will be better equipped to handle the challenges of eDiscovery requests. The process may vary from one organization to another, but the need for a collaborative in-house eDiscovery team remains the same. Above all, having a plan prepared and agreed upon will not only align your team, but it will safeguard you from future problems while reducing your long-term risk and exposure.
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