The Feds amended its Rules of Civil Procedure (FRCP) in December 2006 to include electronically stored information (ESI) in the discovery process. Barely two years later, the term that describes this process – e-discovery – is ubiquitous to the legal field. Additional amendments and rulings have since trickled down the system from the U.S. government and state legislatures.

Welcome to the new land of litigation.

The FRCP orders virtually all organizations to prepare, preserve and produce all pertinent documents and data – paper and electronic – during the discovery process or any point of litigation. Recent court rulings have made it clear that organizations must anticipate litigation and prepare for e-discovery by logically preserving ESI. There’s not much time to organize after a lawsuit is filed. Within 120 days after the filing, courts require involved parties to produce a plan defining how ESI will be produced or else face serious sanctions.

Obviously, it’s important to understand the FRCP, however the law is copious and vulnerable to misinterpretation. But when we break it down, the law actually makes sense. There are a few major points of the FRCP of which organizations must be especially aware.

Let’s first look at how the feds define ESI. Included in the definition are e-mails, Word documents, text documents, spreadsheets, database files, images, intra-office messages, deleted e-mail and file backups. It’s assumed text messages and instant messages are included in the definition, as well, but the FRCP isn’t as clear about these elements. When in question, preserve it.

The inability to produce requested information can result in hefty fines and strict sanctions. Prepare, preserve and produce, as we like to say at Breeze. And that means developing an Litigation-Readiness Plan.

Armed with a solid Litigation-Readiness Plan, or LRP, an organization finds solace in the FRCP. A Litigation-Readiness Plan includes policies and procedures for:

  • Data retention
  • Data destruction
  • Litigation holds
  • Data production

Preparing an LRP should be a team approach because, essentially, no document or piece of data is safe from the e-discovery process. The team members should come from Human Resources, Legal, Operations and Information Technology departments. This collaborative effort greatly increases the legal success of an organization’s preservation and preparedness polices.

One advantage of a thought-out LRP is that it will allow your organization to take advantage of FRCP 37(f), also known as the Safe Harbor Rule. The rule allows organizations to destroy documents if done so in good faith, as a well-documented action, and audited within a readiness plan. This means an organization doesn’t have to keep all their data forever, and the courts won’t fine or sanction an organization for the inability to produce the destroyed data. Hence, the only data that should be kept around for any period of time is for legal or business reasons.

Preserving ESI also requires locating data that may be pertinent and notifying individuals in charge of that data to preserve it. Once the data has been identified as pertinent, an ESI-collection plan should be activated. New technologies make the process more efficient and allow organizations to extract ESI themselves. In parallel with the ESI collection plan, an organization should have in place a litigation-hold plan and a tracking process, in case documents are included in more than one litigation hold. There is now software specifically designed for this process.

Producing ESI can be as simple as gathering a few emails from a single individual or as complex as culling various data forms from a multinational company with hundreds employees in offices worldwide. Either way, an organization has to be prepared. Prepare. Preserve. Produce. Remember?

Kroll Ontrack surveyed almost 140 electronic discovery opinions issued from January to October 2008. Half of the opinions addressed court-ordered sanctions, data production, and preservation and spoliation issues.

The result is costly. During that same time in 2008, Qualcomm Inc. forked over $8 million for e-discovery violations. TheHomeStore.com paid a plaintiff over $300,000 because the online company didn’t comply with e-discovery rules.

If your organization has not prepared for e-discovery with the preservation of ESI, it’s best to consult an e-discovery service provider to analyze the needs of your organization and the best ways to meet them. Do you need help with any or all of the following:

  • Information/records management prior to discovery?
  • Identifying ESI?
  • ESI preservation and collection?
  • Processing/filtering and review of ESI?
  • ESI production?

The clock is ticking once a lawsuit has been filed, and if an organization cannot meet the new timing constraints of the FRCP amendments, it could face strict sanctions from the courts. If your organization is not ready to prepare, preserve and produce, the time is now.

Prepare. Preserve. Produce.


electronic document discovery