Drafting a 'dream team' to prevent e-discovery nightmares: RIM professionals are in a unique position to help their organizations prevent electronic discovery problems. But, this requires them to take the lead in facilitating coordination and cooperation among RIM, IT, and legal staff.

• Author: Dove, Amy
• Position: Banc of America Securities L.L.C. - Cover story

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The proliferation and explosion of electronic information has forced IT, legal, and RIM professionals to work together to gain control of organizational information. The legal stakes are higher now, as well, as lawyers and judges have become more savvy about e-discovery. A case can take a turn for the worse if an organization's document preservation processes are called into question and a judge sanctions it for spoliation, which is the legal term for the intentional or negligent alteration or destruction of evidence before or during litigation.

The January 2010 ruling issued by Judge Judy Scheindlin of the U.S.

Southern District of New York in Pension Committee of the Univ. of Montreal Pension Plan v. Banc of America Securities LLC (Pension Committee) emphasizes that organizations need to have control over their data at all times. RIM professionals must be cognizant of their own role in preparing their organziation for litigation and protecting it from negligence by bridging the gaps between legal, IT, and records business units in responding to a discovery request.

For example, litigation teams often request data maps, which are graphical representations of the location and flow of an organization's electronically stored information (ESI), as part of the e-discovery process. Usually, IT is tasked with creating the map: however, RIM professionals can use the push to help get their RIM program in place and compliant with e-discovery requirements. RIM professionals are especially well poised to take the lead in this area to ensure the organization is prepared for litigation--and to develop a new set of skills and value within the organization in the process.

Legal issues to Understand

To interface effectively with legal staff and be prepared for litigation, RIM professionals must understand the following legal issues.

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The Litigation Hold Process

A litigation hold notification is issued by the legal department and requires the organization to preserve all material that may be relevant to a litigation matter and ensure that it is not destroyed while the litigation is pending. Notifications should include the type of information to be retained and for how long. A litigation hold covers hard copy material, as well as ESI.

Implementing and maintaining a litigation hold is an iterative process that may include interviews, reminders, audits, and follow-up to ensure compliance. This requires an organization to have a good understanding of where its data is stored so it will not be destroyed or rendered unusable.

A litigation hold must go into effect as soon as an organization has reason to believe that it will be sued. Events that might trigger a litigation hold could be as subtle as a manager receiving a report about an internal harassment incident or as evident as a letter from an attorney threatening a lawsuit.

In the Pension Committee case, Scheindlin determined plaintiffs were grossly negligent for not having sufficient written litigation hold guidelines and for continuing to destroy documents after the litigation had commenced. She ruled the jury could assume that the missing documents were detrimental to the case. The plaintiffs took a severe blow because they did not implement a solid litigation hold, and they deleted relevant electronic material due to sloppy document retention policies.

Organizations are commonly sanctioned for failing to preserve documents, and the attorneys are sometimes sanctioned, as well. A diligent RIM professional can help prevent these sanctions.

The Discovery Process

Discovery is the process of exchanging evidence between parties. As shown in Figure 1, it is the third phase of a lawsuit, and it is the most...