Gaining the Advantage in Litigation
In Viramontes, the defendant bank defeated a sanctions motion because it modified aspects of its email retention policy once it was aware litigation was reasonably foreseeable. The bank implemented a retention policy that kept emails for 90 days, after which the emails were overwritten and destroyed. The bank also promulgated a course of action whereby the retention policy would be promptly suspended on the occurrence of litigation or other triggering event. This way, the bank could establish the reasonableness of its policy in litigation. Because the bank followed that procedure in good faith, it was protected from sanctions under Rule 37(e).
As the Viramontes case shows, an organization can be prepared for e-discovery disputes by timely suspending aspects of its document retention policies. By creating and then faithfully observing a policy that requires retention policies be suspended on the occurrence of litigation or other triggering event, an organization can develop a defensible retention procedure.
3. Effectively managing the document collection process. A third best practice the courts emphasized in 2011 is the importance of effectively managing the document collection process. That means uncomfortable corporate bedfellows—the legal and IT departments—will need to cooperate if they are to ensure that data collections are properly carried out. Without the cooperative supervision from both legal and IT, organizations unwittingly delegate to their rank and file employees the duty to identify, preserve and collect relevant information. Allowing employees to unilaterally and arbitrarily do so is generally a recipe for disaster. Such a laissez-faire practice typically prevents an organization from preserving and collecting relevant data from custodians and data sources. Moreover, it undermines the credibility and effectiveness of the e-discovery process.
Not surprisingly, courts frequently fault organizations that delegate the responsibility for the collection process to their employees. The case of Green v. Blitz U.S.A., Inc. (E.D. Tex. Mar. 1, 2011), is a quintessential example of the problem of letting employees have the "last word" on these issues.
In Green, the defendant company was sanctioned for failing to properly identify, preserve and collect relevant electronic information. The company lost key emails after entrusting a single, lay employee with the identification and collection of discoverable documents. That employee had little if any supervision from legal counsel. Worse, the employee failed to involve IT in the production process despite his lack of technical sophistication. As a result, entire categories of relevant data were destroyed and the company was sanctioned accordingly.
Similarly, in Northington v. H & M International (N.D.Ill. Jan. 12, 2011), the court issued an adverse inference jury instruction against a company that destroyed relevant emails and other data. The spoliation occurred in large part because legal and IT were not involved in the production process. For example, counsel was not actively engaged in the critical steps of preservation, identification or collection of electronically stored information. Nor was IT brought into the picture until 15 months after the preservation duty was triggered. By that time, rank and file employees—some of whom were accused by the plaintiff of harassment—had stepped into this vacuum and conducted the process of identification, preservation and collection without meaningful oversight. Predictably, key documents were never found and the court had little choice but to promise to inform the jury that the company destroyed evidence.
An organization does not have to suffer the same fate as the companies in the Green and Northington cases. It can take charge of its data during litigation through cooperative governance between legal and IT. After issuing a timely and effective litigation hold, legal should typically involve IT in the collection process. Legal should rely on IT to help identify all data sources—servers, systems and custodians—that likely contain relevant information. IT will also be instrumental in preserving and collecting that data for subsequent review and analysis by legal. By working together in a top-down fashion, organizations can better ensure that their e-discovery process is defensible and not fatally flawed.
Following these three golden rules will help an organization build a defensible e-discovery process. Adherence to these practices will likewise minimize risks and decrease costs. All of which will ring true with the expectation of courts and clients alike that discovery be conducted in an efficient, cost-effective and defensible manner.
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