Are Your E-Discovery Policies Up-To Date?        

With the rise of computer use and quickly advancing technology, e-discovery policies are a necessity to protect businesses during litigation. 

RANDALL PENTIUK

With the rise of technology and the increased computer use in the legal profession, E-Discovery for lawyers has become increasingly important.  Whether you are advising your client on e-discovery issues before a dispute arises, or you are requesting or producing electronically stored information in the course of litigation, there are important updates that you should know to help you stay on top of your e-discovery obligations. 

Some of the most significant updates to be aware of are making sure your client has a written electronic document retention policy, drafting a litigation hold, and ensuring your client enters into a claw-back agreement.  It is imperative to have competent legal counsel that can draft and give advice on these agreements in order to protect the client’s best interests.

Electric Document Retention Policy
A document retention policy provides for the systematic review, retention and destruction of documents received or created in the course of business.  The lawyer’s biggest fear with regards to
e-discovery is losing a case because their client did not maintain pertinent electronically stored information (ESI).  ESI means “any data or data compilations stored in any medium from which information can be obtained” and is intended to include future technologies unforeseen.  Federal Rules of Civil Procedure 34(a); MCR 2.302(B)(1). 

A document retention policy will identify documents that need to be maintained and contain guidelines for how long certain documents should be kept and how they should be destroyed.   A document retention policy provides a system for complying with document retention laws, it ensures that valuable documents are available when needed, it saves money, space and time, it protects against allegations of selective document destruction, and it provides for the routine destruction of non-business, superfluous and outdated documents. 

As legal counsel, advise your client on writing and implementing an electronic document retention policy, which should include a schedule for destruction of ESI, replacement of backup tapes, and automatic deletion of e-mails.  Having a policy in place avoids accusations of intentional or negligent destruction of evidence and court-ordered sanctions

Guidelines to Establishing Document Retention Policies
Make sure the policy addresses: all types of business records (human resources, financial, legal, correspondence, business activities); all media utilized by the company for record keeping (electronic and paper); and the needs and requirements of all functions and operations.

Identify all legal requirements, including federal, state, and local laws and regulations that require a company to maintain records for a certain time.

Ensure that the policy is claims and litigation neutral and consistently applied without regard to whether documents may be helpful or damaging in future litigation.
Design the policy to work in conjunction with the organization’s electronic document management system.

Consider the use of technology to help in monitoring and enforcing compliance to the retention policies.
Develop and include procedures for obtaining written approval of the initial retention policy and any subsequent modifications to the schedule.

Develop and implementation procedure and how to train employees to use it.

Develop a procedure for updating the policy as technological advances warrant changes.

Develop and effective procedure for ensuring that electronic copies of paper records are 1) complete and accurate replicas of the originals and 2) are an will continue to be accessible in a tangible form for as long as the record will need to be retained. 

Utilize effective destructive methods, particularly in regards to electronic files.

Permanently retain all documentation regarding the design, development, implementation and enforcement of the policy.  ArchScan LLC

Written Litigation Hold Policy
A litigation hold is a written directive advising the records keepers of ESI to preserve potentially relevant evidence in anticipation of future litigation.  These written requests are designed to trigger the duty to preserve relevant evidence, and suspend routine document retention/destruction policies. 

In the past several years as computer and electronic technology has become the main medium of documentation, claims of spoliation and motions seeking discovery sanctions for failure to preserve relevant ESI are costly to the parties involved.  Your client must preserve all potentially relevant ESI once litigation is foreseeable, and must begin this process before any lawsuits or investigations arise.  You should aid your client in drafting a litigation hold policy which details the individual in charge of identifying and preserving the ESI and ensuring the ESI isn’t inadvertently overwritten.  ESI could be hiding in multiple servers, offices, computers, wireless devices, or in archives.  The litigation hold policy should describe how your client will suspend routine destruction of this ESI.   

Courts are divided in holding whether a failure to issue a written litigation hold amounts to negligence. 

Several other courts, however, have rejected such an absolute rule.  Although courts consistently recognize that written litigation holds are common features of litigants’ efforts to comply with the duty to preserve potentially discoverable information, several have held that the failure to issue such a formal litigation hold is not necessarily a breach of that duty.  Instead, the courts focus on the overall reasonableness of a party’s efforts to preserve relevant evidence.

Claw-Back Agreements
A clawback agreement is based on the producing party making a full review before production.  Federal Rule of Evidence 502 now provides that the disclosure of attorney-client or work product information in a federal proceeding does not waive either privilege, so long as (1) the disclosure was inadvertent, (2) the holder of the privilege took reasonable steps to prevent the disclosure, and (3) the holder promptly took reasonable steps to rectify the error.
This is not to be confused with a “quick-peek agreement” where production is made without review by the producing party before production.  Clawbacks are similar to the quick-peek procedure, but have one very distinct difference.  In clawback agreements the producing party reviews the documents before producing. 

If the review misses some privileged or confidential information, and the producing party later becomes aware of the mistake, he has a second chance to keep his secrets and may “claw them back” with a claim of privilege.  Any disputes can be brought before the court, with the chance to correct the mistake.    The issue with clawback agreements is that they are unenforceable against third parties.  While clawback agreements are valuable, they are not without risks. 

There are many things you can do to keep on top of your e-discovery obligations.  Some of the two most important policies have been discussed, although there are many more. 

It is essential to ensure your client preserves their ESI as soon as a lawsuit becomes foreseeable, use a computer forensics expert to harvest ESI once a litigation hold begins, refrain from handing over your client’s hard drive or a copy of it, and always request metadata when requesting forms of production.  In addition, always consider deposing your opponent’s electronic records keeper