Best Practices for Preparing Electronic Content for Litigation

Today, important complex changes in the Federal Rules of Civil Procedure (FRCP) regarding electronic discovery become official, resulting in the transformation of how electronic content is managed.

The changes, which have been generally recognized within the corporate legal community for some time, make all companies in the U.S. and some multi-nationals more accountable for preserving and accessing data for electronic discovery requests. Failure to follow the new rules will likely be a costly mistake, resulting in longer, expensive “rush job” discovery requests, unnecessary and costly settlements of frivolous litigation, and even lost cases and possible fines.

Over the last several years, electronic discovery has consistently become more widespread and costly for enterprises, with costs averaging $1.5 million per defense of a corporate lawsuit, according to Gartner.

To meet the requirements of the rule changes, companies will likely need to add additional IT infrastructure and services. However, by taking a best-practices approach to electronic discovery, organizations can minimize additional infrastructure expenditures, control the costs of legal proceedings, and maximize the effectiveness of litigation in the U.S. federal court system.

The Changes

The amendments to the FRCP, which were approved by the U.S. Supreme Court, for the first time specify that electronically stored information, including email, should be preserved for possible analysis and production during civil procedures. The rules affect all U.S.-based organizations, and some multi-nationals, and can dramatically increase the time and money spent preparing for litigation.

Although the FRCP amendments are complex, what you can do to minimize the risks of violating them is clear: You must be able to identify the sources of electronic evidence you have, be clear on where it resides, and know how to produce it for opposing counsel if necessary.

While these goals are clear, how to cost-effectively reach them may seem daunting. However, by adopting the following best practices, organizations can minimize the cost and hassle of evolving their infrastructure, and then approach litigation with confidence they can handle electronic discovery properly and efficiently.

Establish “good-faith” data deletion. The FRCP changes make it imperative that companies develop a best practice for the deletion and disposition of electronically stored information.

In the absence of fully established case law, it’s critical to demonstrate “good faith” in all actions and operations, and the key to the good faith concept is to set up deletion procedures that allow for quick and reliable implementation of “litigation holds” to prevent data relevant to pending or anticipated litigation from being destroyed.

To do this, take the following steps:

  • Gather all information about data preservation requirements.
  • Confirm that all preservation information is comprehensive to that date and ensure all appropriate people sign off on it.
  • Scan information against all records scheduled for deletion.
  • Tag records to be placed on litigation hold.
  • Hold litigation-related records in a secure location.
  • Update preservation information and check against any new or changed preservation criteria one last time. If the preservation criteria has changed, start again at Step 3.
  • Verify the preservation criteria used to scan the records targeted for deletion is complete, final, and signed off.
  • Delete records not tagged for litigation hold.
  • Log the deletion by preserving at least the date of deletion, the preservation criteria, and the identities of authorizing entities.