Magazine article Information Management

Building a Successful E-Discovery Strategy

Magazine article Information Management

Building a Successful E-Discovery Strategy

Article excerpt

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Organizations that adhere to sound information governance policies through disciplined records and information management are positioned to find success in even the most complex e-discovery projects.

The best place to start building the strategy for a successful discovery project is at the beginning. Not at the beginning of the investigation or the litigation, but at the records and information management (RIM) stage--which, according to ARMA International, is the foundation for strong information governance (IG) and is built by "establishing and implementing policies, systems, and procedures to capture, create, access, distribute, use, store, secure, retrieve, and ensure disposition of records and information.

Organizations that adhere to sound IG policies through disciplined RIM are positioned to find success in even the most complex e-discovery projects; this is because the e-discovery process is affected directly by how well information is managed.

In fact, as shown in Figure 1, information management (referred to in this article as RIM) is the beginning stage of the Electronic Discovery Reference Model (EDRM), which is widely recognized as the basis for establishing a meaningful approach to a successful e-discovery strategy.

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ILM: Critical for E-Discovery

A fundamental tenet of RIM is managing information throughout its life cycle--from creation to disposition; this is referred to as information lifecycle management (ILM). Those who developed the EDRM understood that properly managing information throughout its life cycle--not just when it is needed for litigation or investigation --is essential to e-discovery success.

E-discovery professionals that don't understand what is addressed in the first phase of the EDRM may not be aware of the critical role ILM fundamentals play in the e-discovery process. They may believe they have the RIM piece covered because they have information technologists who manage their servers, applications, and the data that resides in them; but, it is not that simple.

As Table 1 on page 34 illustrates, ILM and the EDRM are very similar.

RIM Reduces Financial Burden

In his "e-Discovery Team" blog about the Rand report "Where the Money Goes," noted attorney and e-discovery expert Ralph Losey discusses the growing complexities directly associated with the growth of data, and the burdensome cost of governing that data are made clear. Another reference to the increase in over-burdensome cost is from Inside Counsel, entitled "E-discovery: Potential cost shifting for document review."

The courts continue to drive home the point that reducing the growing financial burden of the e-discovery process lies within that first phase of the EDRM. They have made it clear that organizations that fail to manage their information proactively and therefore overburden the legal process will be sanctioned accordingly.

Ignorance or lack of budget will not appease the court; both excuses have brought steep sanctions. For example, in the case of United States v. Philip Morris USA, Inc., 327 F.Supp.2d 21, 25-26 (D.D.C. 2004), the court imposed a fine of $2.75 million and barred testimony of witnesses who violated the court's preservation order and company's document retention policy.

In MasterCard International, Inc. v. Moulton, 2004 U.S. Dist. LEXIS 11376, *14-16 (S.D.N.Y. June 22, 2004), the court allowed argument for negative inferences due to Moulton's failure to cease normal document retention practices, despite the absence of bad faith.

Rule 26 of the Federal Rules of Civil Procedure (FRCP) requires opposing counsel to "meet and confer" to discuss and, to a great extent, agree upon the types of electronic information each party requires. A successful outcome depends on how well the organizations know what information they have, where it is located, how to cull it, and how to retrieve and produce it in a way that ensures its authenticity--in other words, it depends on how well they govern their information. …

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