The 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. The scope of data to be preserved or disclosed is determined by the subject matter of the dispute and the law and procedural rules that a court or other authority will ultimately apply to resolve it.
In general, data is potentially discoverable if it is relevant to the disputed transaction or may lead to relevant data. Failure to preserve or disclose discoverable data may result in serious penalties. To minimize this risk, diligent steps must be taken to identify all potentially discoverable data in your possession or control.
- Ensuring that all critical legal and business records are retained;
- Allowing the company to meet legal requirements;
- Preserving the records in authentic format in the event of litigation;
- Avoiding liability (for example, through spoliation -- improperly destroying or altering evidence or failing to preserve it);
- Reducing or limiting costs during discovery;
- Keeping internal documents confidential.
A document-retention policy will necessarily be unique to an organization. Creating such a policy can be painstaking and time-consuming and requires, at a minimum, input from the business, legal and technical input, along with guidance from records-retention specialists. An effective policy will describe the scope of the policy -- are individual departments affected differently, or does the policy apply to the organization as a whole? -- responsible individuals, exceptions to the policy, retention periods, retention methodologies (e.g., storage, format and location), how to handle confidential materials and communications and privacy considerations for employees.
Identification Categories
Litigation Hold
During the identification process, potential custodians are interviewed to determine if they
are in possession of relevant documents or data.
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.
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.