Tips for Following Best Practices in E-Discovery Data Management

As technology continues to evolve and electronic devices become cheaper to purchase and easier to use, it is inevitable that the volume of e-discovery available for collection in litigation will continue to grow exponentially. Companies that want to stay current need to invest more personnel and financial resources to e-discovery management before litigation occurs to reduce risk and keep costs at a minimum so that they are ready when lawsuits are foreseeable and comprehensive e-discovery requests are made by opposing counsel.

When e-discovery requests are served in litigation, companies may be required to search through wide ranging types of electronic data including, but not limited to, emails, memos, pdfs, calendar entries, contacts, thumb drives, home computers, text messages, social media posts, voicemails, photos and videos. Basically, any type of electronic information that can be shown to likely contain business communications can become necessary to preserve, even if it may not ultimately be discoverable in litigation. Spoliation claims are much easier for companies to defend when they implement and follow a well thought out plan to manage the different types of electronic data that may eventually be discoverable.

When putting together a data management and document retention policy for your business, it is important to consider all of the various ways in which employees within your business communicate. You should make sure all known forms of business communication are addressed in your policy with specific instructions as to how long each type of data should be retained. You should also monitor your employees to make sure they are following procedures by disposing of the data according to the retention period outlined in the policy. It is important to communicate to employees through email or memorandum that they should ask any questions they might have about compliance with the policy and someone knowledgeable should be assigned to respond to those questions.

If litigation is reasonably foreseeable, the litigation hold policies established in the policy should immediately be triggered, which would include instructing those individuals within your company who are identified as having possession or access to documents, electronically stored information or tangible items that are potentially discoverable to immediately suspend any auto-deletion programs and otherwise suspend the disposal of information pursuant to the standard retention procedures. Using best practices, communication of suspension of the retention policy should be verbally as well as via a memo attached to an email as part of well thought out and described litigation hold instructions so that you have something to use in court if opposing counsel decides to challenge your discovery process with the goal of making a claim of spoliation. Further, you should continue to follow-up with company employees that receive the litigation hold to make sure they continue to comply with its terms and to answer any questions they may have. Constant auditing of the policies is an additional way to defend against a claim of negligence discovery practices.

Taking the steps outlined above with regards to data retention before and during litigation can potentially save you and your company from incurring substantial litigation costs, including possible sanctions when dealing with e-discovery requests.

CASE ALERT: DATA MANAGEMENT POLICIES SAVE MONEY

In Solo v. United Parcel Services Co., No. 14-12719, 2017 U.S. Dist. LEXIS ______ (E.D. Mich. January 10, 2017) UPS successfully argued that a discovery request was excessively burdensome, using as support the fact that the company had established internal policies to archive information on to back up tapes after six months, with the business rationale being that the volume of information was so large that it was only maintained in a “live” format for that limited time period. UPS then outlined that collecting usable data from the back up tapes would require custom software, take six months, and cost around $120,000, and offered an alternative less costly mechanism for providing their opponents with information that would suit their needs.

The important message to businesses of all sizes is that having sound and rational data retention policies that are strictly and consistently followed can provide powerful evidence to support motions objecting to burdensome requests for collection and preservation of documents, under the new proportionality principles embedded in the late 2015 changes to the Federal rules. Without such internal policies and procedures, defenses are difficult to maintain against fishing expeditions that impose a cost burden on companies, resulting in warped case evaluations and early unwanted resolutions of what are often otherwise meritorious cases.

There are many factors to consider in establishing such policies, including costs and forms of archiving data, downsides of reducing immediate access to some data versus savings from archiving it, compliance with relevant regulations and laws, compliance with existing litigation holds, and much more. For more on the importance of litigation holds, click HERE.

However, given the potential runaway costs of complying with onerous discovery obligations, companies would be wise to spend the time and money necessary on the front end to put reasonable data management policies in place that will arm litigation counsel with evidence needed to support proportionality objections, potentially resulting in untold future savings.