Casting a Broad Net

Learning the location of potentially discoverable data is the prerequisite to analyzing if and how it should be preserved, collected, and reviewed. Identification should be as thorough and comprehensive as possible. Begin with key players and business information systems. Data of individuals who played a central role in the disputed transaction or matter are likely to contain the majority of information relevant to the dispute. Focusing initially on key players and key business information systems is practical as legal counsel ordinarily need to access and understand samples, such as select emails and reports, as early as possible in order to define the legal and factual issues which drive further identification and discovery. Failure to preserve key player and key system data also poses the greatest risk of penalties.

The scope of data potentially subject to preservation and disclosure may be uncertain in the early phases of a legal dispute. The nature of the dispute itself and the individuals involved may change as the litigation progresses. The identification team should therefore anticipate change and have a procedure in place for capturing any newly identified information.

Identification requires diligent investigation and analytical thinking by individuals whose minds are also needed to mission critical activities. The very short time frames typically imposed by litigation are not likely to be met without an internal champion who can authorize and direct internal experts and custodians to treat identification as a business priority.

Identification Categories

Triggering Event
The duty to preserve and disclose data may be triggered by a judicial order, a discovery request, or mere knowledge of a pending or future legal proceeding likely to require the data.

Litigation Hold
During the identification process, potential custodians are interviewed to determine if they are in possession of relevant documents or data.

Steps in Determining the Scope of Responsive Data
Planning is one of the most important parts of the e-discovery process and should include outside counsel, inside counsel, corporate information technology personnel and possibly an electronic evidence consultant.