Best Practices for Preparing Electronic Content for Litigation

Know what data you have and in which format it exists. The FRCP changes provide a mechanism by which a party to a lawsuit can claim that it need not search certain sources of information due to an undue burden or cost. But to take advantage of this rule, you must be able to identify with as much specificity as possible:

Your sources of electronic information.

The electronic information you do plan to use in the litigation.

The sources of information you don’t intend to search due to undue burden or cost.

How much it would cost to search them.

The likelihood they would turn up any relevant information.

This rule also applies to the contents of backup tapes.

Address the most important content first. According to the Enterprise Strategy Group (ESG), email represents a staggering 75% of all corporate intelligence, and in 2005, according to Corporate Counsel Magazine, U.S. organizations spent a total of $5.8 billion to analyze email for discovery purposes. Several million-dollar fines have been levied against corporations in the last few years for failure to capture, preserve, and produce email.

Focus on email as one of the first types of content you properly capture and preserve. To manage both current and older email and provide quick access when needed, implement a content-archiving solution as a central repository for both email and files.

Ensure that policies established for data deletion are integrated with the archive, and that both the policy and the system allow for “legal holds.” While the rule changes require companies to integrate data deletion into the archiving system, companies should ensure the flexibility to initiate legal holds to prevent automatically deleting information relevant to pending litigation.

Legal holds require companies to retain data relevant to “pending or reasonably anticipated litigation,” and the legal hold process should be a part of your general retention policies. This ensures that potentially discoverable data is not deleted, which could save your organization millions of dollars in lost suits or settlements.

It’s important to note that in many cases, the requirement to preserve data is triggered long before a lawsuit is initiated. For example, a company is expected to place a legal hold on email and files related to its research and development efforts on the day a newspaper article is printed about its product defects—and not when an associated class-action suit commences.

Steve King is president and CEO of ZANTAZ, a global provider of content archiving and electronic discovery solutions.