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Discovering E-Discovery: Identification, Retention, Preservation

Identification, Retention, Preservation

Whether you are thinking as a lawyer of your own electronically stored information (ESI) or that of your client, you will need to consider the information technology plan, which will include::

  • a records management plan
    • what ESI is routinely preserved by the firm on its own or its employees' electronic storage locations
    • where is that ESI is stored: storage locations include computer drives, whether on the computer, on enterprise servers, on external media such as backup tapes, or on leased storage space ("the cloud").
  • the computer usage policy
  • the network "map"
  • the organization chart of the IT department.

Source: Michael D. Berman, et al., Managing E-discovery and ESI 102 (2011). Law Library: 8902 E42 M36 2011.

You will need a mechanism in place for imposing a litigation hold to stop disposing of ESI pursuant to the retention schedule once the potential for litigation is recognized..

What is Records Management?

The International Standards Organization defines "record management" as "[the] field of management responsible for the efficient and systematic control of the creation, receipt, maintenance, use and disposition of records, including processes for capturing and maintaining evidence of and information about business activities and transactions in the form of records".

Source: Information and documentation -- Records management -- Part 1: General, ISO 15489:2001.

Records management can include not just retention and destruction policies, but disaster recovery and protection from security breaches, among other things.  The key to any records policy should be reasonableness.

Source: The Sedona Conference, Best Practices Guidelines and Commentary for Managing Information & Records in the Electronic Age 8 (2007).

What is Metadata?

Metadata is structured information that describes, explains, locates, or otherwise makes it easier to retrieve, use, or manage an information resource.  Metadata is often called data about data or information about information.

There are three main types of metadata:

  • Descriptive metadata describes a resource for purposes such as discovery and identification.  It can include elements such as title, abstract, author, and keywords.
  • Structural metadata indicates how compound objects are put together, for example, how pages are ordered to form chapters.
  • Administrative metadata provides information to help manage a resource, such as when and how it was created, file type and other technical information, and who can access it.  There are several subsets of administrative data; two that sometimes are listed as separate metadata types are:
    • Rights management metadata, which deals with intellectual property rights, and
    • Preservation metadata, which contains information needed to archive and preserve a resource.

Source: NISO Press, Understanding Metadata (2004).


Legal Holds

The Sedona Conference Glossary: E-Discovery and Digital Information Management (5th ed.) defines the term "legal hold" as:

...a communication issued as a result of current or reasonably anticipated litigation, audit, government investigation or other such matter that suspends the normal disposition or processing of records. Legal holds may encompass procedures affecting data that is accessible as well as data that is not reasonably accessible. The specific communication to business or IT organizations may also be called a hold, preservation order, suspension order, freeze notice, hold order, litigation hold, or hold notice. See, The Sedona Conference Commentary on Legal Holds, June 2019...[20 The Sedona Conference Journal 341 (June 2019).]

The Commentary on Legal Holds sets out eleven guidelines "intended to facilitate compliance by providing a framework an organization can use to create its own preservation procedures."

Guideline 1. A reasonable anticipation of litigation arises when an organization is on notice of a credible probability that it will become involved in litigation, seriously contemplates initiating litigation, or when it takes specific actions to commence litigation.

Guideline 2.  Adopting and consistently following a policy governing an organization’s preservation obligations are factors that may demonstrate reasonableness and good faith.

Guideline 3.  Adopting a procedure for reporting information relating to possible litigation to a responsible decision maker may assist in demonstrating reasonableness and good faith.

Guideline 4.  Determining whether litigation is or should be reasonably anticipated should be based on a good-faith and reasonable evaluation of relevant facts and circumstances.

Guideline 5.  Evaluating an organization’s preservation decisions should be based on the good faith and reasonableness of the decisions (including whether a legal hold is necessary and how it should be implemented) at the time they are made.

Guideline 6.  Fulfilling the duty to preserve involves reasonable and good-faith efforts, taken as soon as is practicable and applied proportionately, to identify persons likely to have information relevant to the claims and defenses in the matter and, as necessary, notify them of their obligation to preserve that information.

Guideline 7.  Factors that may be considered in determining the scope of information that should be preserved include the nature of the issues raised in the matter, the accessibility of the information, the probative value of the information, and the relative burdens and costs of the preservation effort.

Guideline 8.  In circumstances where issuing a legal hold notice is appropriate, such a notice is most effective when the organization identifies the custodians and data stewards most likely to have discoverable information, and when the notice:

(a) communicates in a manner that assists persons in taking actions that are, in good faith, intended to be effective;                                    (b) is in an appropriate form, which may be written, and may be sent by email;                                                                                                (c) provides information on how preservation is to be undertaken, and identifies individuals who can answer questions about preservation;  (d) includes a mechanism for the recipient to acknowledge that the notice has been received, read, and understood;                                    (e) addresses features of discoverable information systems that may make preservation of discoverable information more complex (e.g.,         auto delete functionality that should be suspended, or small sections of elaborate accounting or operational databases);                          (f) is periodically reviewed and amended when necessary; and                                                                                                                          (g) is followed up by periodic reminder notices, so the legal hold stays fresh in the minds of the recipients.

Guideline 9.  An organization should consider documenting the procedure of implementing the legal hold in a specific case when appropriate.

Guideline 10.  Compliance with a legal hold should be regularly monitored.

Guideline 11.  Any legal hold process should include provisions for releasing the hold upon the termination of the duty to preserve, so that the organization can resume adherence to policies for managing information through its useful life cycle in the absence of a legal hold.

Guideline 12. An organization should be mindful of local data protection laws and regulations when initiating a legal hold and planning a legal hold policy outside of the United States.



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