The Litigation Response Plan
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. In many cases, this process is driven by the generation of a litigation response plan (LRP). The purpose of the LRP is to:
- Collect, assimilate, and document existing legal strategies, corporate infrastructure and topographies, and electronic evidence production methodologies;
- Work with the inside counsel, outside counsel team, and the corporate information technology team to provide legal and technical strategy, including data gathering strategies, pleadings, and best practices consultation;
- Establish a written policy to follow upon receipt of a discovery request, preservation order or other similar item;
- Ensure that the company meets its legal obligations while minimizing the electronic discovery expense and burden; and
- Ensure that the third-party consultant can provide expert witness testimony in the event the implementations of the electronic discovery strategies come into question.
Development of the litigation response plan should take place at the corporate site with the appropriate legal teams and knowledgeable information technology staff. Interviews with the Chief Information Offices, General Counsel or Director of Information Technology, technology support personnel, records management, and the disaster recovery team may yield a significant amount of information about the location of potentially relevant electronic documents.
Some outside counsel firms provide e-discovery consulting services and many electronic discovery vendors have consultants to assist with designing and defining an electronic discovery project. When selecting a vendor, it is important to examine the credentials of the consultant being assigned the project. Ask for a detailed curriculum vitae and look for references, testimony experience and relevant consulting experience.
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.
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.