To map or not to map: strategies for classifying sources of ESI: while data maps are primarily an electronic discovery tool used to help organizations mitigate their legal risks and costs, they can also help them better meet business objectives.

• Author: Wetmore, David
• Position: Electronically stored information

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When traveling through an unfamiliar area, a map can be the key to finding the right path. Without maps, we work from instinct or through guesswork. The stakes are too high when responding to an electronic discovery request to rely on the ability to "figure it out." The purpose of a data map is to help an organization make informed discovery decisions in a consistent manner so similar facts and allegations lead to similar responses.

The interest in data maps is driven by the proliferation of electronic documents, increased regulatory reporting requirements, and the December 2006 adoption of the revised Federal Rules of Civil Procedure (FRCP). Numerous electronic discovery vendors, consultants, and law firms have since extolled the virtues of electronically stored information (ESI) maps as tools that support compliance with disclosure requirements under FRCP Rule 26 and as tools that can dramatically reduce cost and risk.

Two years after the promulgation of the revised rules, organizations have successfully responded to discovery demands with and without relying on ESI maps, begging the question: In an economic climate in which organizations are deferring and canceling IT projects, is there good reason to develop an ESI map?

Benefits of Data Maps

One strong argument in its favor is that an effective ESI map enables an organization to address top general counsel (GC) priorities identified in a 2008 GC Roundtable Survey:

* Understand the universe of potentially responsive ESI

* Effectively manage the ESI preservation and collection processes

* Minimize disruption to business and revenue-generating employees

* Reduce the cost of electronic discovery

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There are several other arguments for creating an ESI map:

Cost Containment

Cost containment is the most appealing rationale, but it has the weakest business case. There are potential hard-dollar savings through reduced document review costs that result from more-targeted collections of ESI, but these are speculative savings.

Reduced Legal Risks

A better argument for ESI maps is that, if well designed, they will increase an organization's ability to manage preservation and collection effectively, reducing legal risks and addressing several of the above priorities.

* Improving the understanding of the organization's sources of potentially relevant ESI

* Reducing disruption to revenue-generating employees by reducing necessary consultations when responding to discovery obligations

* Enhancing risk mitigation for the organization as discovery needs increase because the ESI map and associated processes will enable greater consistency in discovery responses and disclosures

* Identifying orphaned data--data no longer associated with an owner or with the system that created it--that is not required for litigation, regulatory, business, and/or institutional memory purposes

IP Protection

While efforts by organizations to identify and manage ESI are driven primarily by electronic discovery risks, some organizations are recognizing that business objectives to better protect intellectual property, trade secrets, and private information may be supported by this process. Techniques similar to ESI mapping can help organizations better understand where sensitive information is stored on their networks so procedures can be implemented to protect it. These additional benefits notwithstanding, ESI maps remain primarily an electronic discovery tool, intended to improve risk mitigation.

Asset Tracking

IT can use the data maps to supplement their asset-tracking systems. Since the backup methodology is documented for high-risk systems, IT and legal can determine if any changes should be made to the backup protocol to mitigate potential risks to the organization.

Legal can also use these data maps to...