Best Practices for Navigating E-Discovery: A Whole New World

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May 11, 2011

May 2011 Issue


Discovering Best Practices

Nolan Goldberg is senior counsel, IP and technology, with Proskauer Rose in New York City. Goldberg is on the firm's e-discovery committee and is an electrical engineer. The concept of best practices in e-discovery is complex, says Goldberg, because of the sheer variety between companies and the cases with which they're involved. "Each client is different in terms of the networks and documents they have, how the networks are laid out, what kind of systems they have, what kind of documents they have, what in-house e-discovery tools they have, if they're located in just the U.S. or also in Europe, which raises all kinds of cross-border conflict issues."

Randy Burrows agrees, adding that the level of understanding among clients also varies widely. Burrows is VP and general manager of Xerox Litigation Services. "There are certainly companies that get it better than others-some of it just has to do with who they are and how much litigation they have," he says. "There's a broad variation between our clients in terms of not only levels of sophistication, but levels of desire. Some clients are sort of happy pushing it all out and having someone take care of it. Others are very, very actively involved."

Still, there are some things that organizations can do to simplify the process and ensure that they are realizing the advantage of e-discovery.

Record Retention Policies

"I don't know if I'm just listening differently, but right now the big buzzword is workflow," says Burrows. "There's been a lot of advancement in tools and certainly in features, but what we've found and what I think our clients are finding is that they weren't completely taking advantage of them." What organizations need, says Burrows, is help with workflow-"how to take these various tools and put them in the right place so they're actually reducing the data and ensuring they're not missing things."

While the concept is certainly not new, and definitely not driven by e-discovery, a good records retention policy is extremely important, says Willms.
"The percentage of companies that have a good records retention policy, particularly as it relates to electronic information, is still too low," he says. "That's an area where more and more attention is going to be focused."

"It's important to manage data in a way that contemplates a data request," agrees Kelly Kubacki, a staff attorney with Kroll Ontrack. That means, she says, "creating and maintaining records management protocols that systematically retain data necessary for legal and business purposes and actually disposing of the rest of the unneeded data, rather than just retaining everything."

Of course, effectively managing data requires that organizations know what kind of data they are dealing with. Gagan Bhatia is worldwide product manager, information management, software, at HP. He recommends conducting surveys and interviewing users by department or function to understand how information is currently cataloged and indexed to help break down the silo effect of storing information. "This will also help develop classification standards and local procedures that link with the overall governance package," he says.

Communication and education of end users is another best practice, says Bhatia. "Establishing a guide or training to make sure all employees are knowledgeable about their role in records management and what data may be called into question safeguards against accidental deletion of important documents."

As part of records retention practices, companies should strive to "save less," say Carter and others. Having a good information management program in place can help to ensure that there is less information to retain, she says.

"What we tell our clients-most are corporate clients-is to review less data and to review it faster," says Willms.

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