So, for instance, if your policy is to destroy all e-mail messages that do not have a legal hold (or are expected to) after 90 days and you apply that policy uniformly, you will be able to defend the practice in court. Also, implementing the retention policy reduces your storage burden and costs while cutting the risk of liability that might be buried in obscure e-mail messages.
4. As an extension of your retention policy, implement a legal hold policy that is enforceable, auditable, and legally defensible. Be sure to include all potentially discoverable ESI XE “litigation:e-discovery”. We discuss legal holds in more depth later in this chapter, but be sure to cast a wide net when developing retention policies so that you include all relevant electronic records, such as e-mail, e-documents and scanned documents, storage discs, and backup tapes.
5. Leverage technology. Bolster your e-discovery planning and execution efforts by deploying enabling technologies, such as e-mail archiving, advanced enter- prise search, TAR, and predictive coding.
6. Develop and execute your e-discovery plan. You may want to begin from this point forward with new cases, and bear in mind that starting small and piloting is usually the best course of action.
implicate them. This is possible only if proper IG controls are not in place, monitored, enforced, and audited.
Many organizations start with Legal Hold Notifi cation (LHN) management as a very discrete IG project. LHN management is arguably the absolute minimum an orga- nization should be doing in order to meet the guidelines provided by court rules, com-g mon law, and case law precedent. It is worth noting, though, that the expectation is that organizations should connect the notifi cation process to the actual collection and preservation of information in the long term.
Table 8.1 IG Impact on E-Discovery
Impact Function
Cost reduction Reduce downstream costs of processing and review by defensibly disposing of data according to corporate retention policies
Reduce cost of collection by centralizing collection interface to save time
Keep review costs down by prioritizing documents and
assigning to the right level associates (better resource utilization) Reduce cost of review by culling information with advanced analytics
Risk management Reduce risk of sanctions by managing the process of LHN and the collection and preservation of potentially responsive information
Better litigation win rates Optimize decision making (e.g., settling cases that can’t be won) quickly with advanced analytics that prioritize hot documents
Quickly fi nd the necessary information to win cases with advanced searches and prioritized review
Strategic planning for matters based on merit
Determine the merits of a matter quickly and decide if it is a winnable case
Quickly route prioritized documents to the right reviewers via advanced analytics (e.g., clustering)
Strategic planning for matters based on cost
Quickly determine how much litigation will cost via early access to amount of potentially responsive information and prioritized review to make decisions based on the economics of the matter (e.g., settle for less than the cost of litigation)
Litigation budget optimization Minimize litigation budget by only pursuing winnable cases Minimize litigation budget by utilizing the lowest cost resources possible while putting high-cost resource on only the necessary documents
Source: Barry Murphy, eDiscovery Journallhttp://ediscoveryjournal.com/
LHN management is the absolute minimum an organization should imple- ment to meet the guidelines, rules, and precedents.
How to Kick-Start Legal Hold Notifi cation
Implementing an LHN program attacks some of the lower-hanging fruit within an or- ganization’s overall IG position. This part of the e-discovery life cycle must not be outsourced. d Retained counsel provides input, but the mechanics of LHN are managed and owned by internal corporate resources.
In preparing for a LHN implementation project, it is important to fi rst lose the perception that LHN tools are expensive and diffi cult to deploy. It is true that some of these tools cost considerably more than others and can be complex to deploy; however, that is because the tools in question go far beyond simple LHN and reach into enter- prise systems and also handle data mapping, collection, and workfl ow processes. Other options include Web-based hosted solutions, custom-developed solutions, or process- es using tools already in the toolbox (e.g., e-mail, spreadsheets, word processing).
The most effective approach involves three basic steps:
1. Defi ne requirements.
2. Defi ne the ideal process.
3. Select the technology.
Defi ning both LHN requirements and processes should include input from key stakeholders—at a minimum—in legal, records management, and IT. Be sure to take into consideration the organization’s litigation profi le, corporate culture, and available resources as part of the requirements and process defi ning exercise. Managing steps 1 and 2 thoroughly makes tool selection easier because defi ning requirements and processes creates the confi dence of knowing exactly what the tool must accomplish.
IG and E-Discovery Readiness
Having a solid IG underpinning means that your organization will be better prepared to respond and execute key tasks when litigation and the e-discovery process proceed. Your policies will have supporting business processes, and clear lines of responsibility and accountability are drawn. The policies must be reviewed and fi ne-tuned periodically, and business processes must be streamlined and continue to aim for improvement over time.
In order for legal hold or defensible deletion (discussed in detail in the next section—disposing of unneeded data, e-documents, and reports based on set policy) projects to deliver the promised benefi t to e-discovery, it is important to avoid the very real roadblocks that exist in most organization. To get the light to turn green at the intersection of e-discovery and IG, it is critical to:
■ Establish a culture that both values information and recognizes the risks inherent in it. Every organization must evolve its culture from one of keeping everything to one of information compliance. This kind of change requires high-level ex- ecutive support. It also requires constant training of employees about how to create, classify, and store information. While this advice may seem trite, many managers in leading organizations say that without this kind of culture change, IG projects tend to be dead on arrival.
■ Create a truly cross-functional IG team. Culture change is not easy, but it can be even harder if the organization does not bring all stakeholders together when setting requirements for IG. Stakeholders include: legal; security and ethics; IT;
records management; internal audit; corporate governance; human resources;
compliance; and business units and employees. That is a lot of stakeholders. In organizations that are successfully launching and executing IG projects, many have dedicated IG teams. Some of those IG teams are the next generation of records management departments, while others are newly formed. The stake- holders can be categorized into three areas: legal/risk, IT, and the business.
The IG team can bring those areas together to ensure that any projects meet requirements of all stakeholders.
■ Use e-discovery as an IG proof of concept . Targeted programs like e-discovery,t compliance, and archiving have a history of return on investment (ROI) and an ability to get budget. These projects are also challenging, but more straightforward to implement and can address sub-sets of information in ear- ly phases (e.g., only those information assets that are reasonable to account for). The lessons learned from these targeted projects can then be applied to other IG initiatives.
■ Measure ROI on more than just cost savings . Yes, one of the primary benefi ts of ad-s dressing e-discovery via IG is cost reduction, but it is wise to begin measuring all e-discovery initiatives on how they impact the life cycle of legal matters. The effi ciencies gained in collecting information, for example, have benefi ts that go way beyond reduced cost; the IT time not wasted on reactive collection is more time available for innovative projects that drive revenue for companies. And a better litigation win rate will make any legal team happier.