10 Critical Decisions for Successful E-discovery

The Information Management Journal/September / October 2007- Today’s explosion of electronic data, coupled with the December 2006 amendments to the Federal Rules of Civil Procedure (FRCP) concerning electronically stored information (ESI), requires information and legal professionals to expand their knowledge about handling electronic discovery. The recent changes to the FRCP include:

* Definitions and safe harbor provisions for the routine alterations of electronic files during routine operations such as back ups [Amended Rule 37(f)]
* Information about how to deal with data that is not reasonably accessible [Amended Rule 26(b)(2)(B)]
* How to deal with inadvertently produced privileged material [Amended Rule 26(b)(5)]
* ESI preservation responsibilities and the pre-trial conference. [Amended Rule 26(f)]
* Electronic file production requests [Amended Rules 33(d), 34, 26(f)(3), 34(b)(iii)]
There are many opinions about how ESI should be planned for, managed, organized, stored, and retrieved. Some of the available options are extremely costly in terms of their required financial and time commitments. Constantly changing technologies only add to the confusion. One area of confusion is the distinction between computer forensics and electronic discovery; there is a significant difference. These are described in the sidebar Computer Forensics vs. Electronic Discovery.
Making the Right Choices
Successfully responding to e-discovery within the constraints of the amended FRCP requires organizations to make many critical decisions that will affect the collection and processing of ESI.
Collection Decisions
The following questions need immediate answers:
1. Are e-mail files part of this project? If so, do any key people maintain an Internet e-mail account, in addition to their corporate accounts?
The sheer volume of transactions for large e-mail providers prohibits the storage of massive amounts of mail files. Many Internet e-mail account providers, such as AOL, BellSouth, and Comcast, retain their e-mail logs no longer than 30 days. If a case could potentially require the exploration of e-mail from Internet accounts, the discovery team must expeditiously request the records, or they may be gone forever. This usually requires a subpoena. In rare cases, fragments of Internet e-mail may be recovered forensically from an individual’s hard drive.
2. Is there any chance illegal activity may be discovered?