SC Lawyer, July 2004, #3. Organizing an effective response to electronic discovery.

• Author: By J. Mark Jones and John D. Martin

South Carolina Lawyer

2004.

SC Lawyer, July 2004, #3.

Organizing an effective response to electronic discovery

South Carolina LawyerJuly 2004Organizing an effective response to electronic discoveryBy J. Mark Jones and John D. MartinOrganizing an effective response to electronic discovery has three essential components: (1) an experienced team leader - one with solid judgment on discovery issues, good management skills and an understanding of the special challenges of electronic discovery; (2) a multi-disciplined team that includes not only outside counsel and paralegals, but also one or more representatives of the client's legal and information technology (IT) departments, a document services vendor and possibly other specialized resources; and (3) a carefully-constructed plan of action. This article offers ideas on how to assemble the right team and how to develop for that team a comprehensive and well-organized project plan.

Assembling the right team

- Team leader - It is hard to overstate the importance of selecting the right person to manage such a project. To be effective, the team leader will need to have the experience and judgment to make sound decisions about a variety of discovery issues - from evaluating the proper scope of document preservation and collection to creating procedures for protecting against the inadvertent production of privileged documents. Because large electronic discovery projects are labor intensive, the leader also needs to have good personnel management skills. Moreover, it is important for the leader to understand enough about the various sources of electronic records (e.g., networks, PDAs and backup tapes) to help design common sense solutions to the challenges presented by each one.

- Outside counsel resources - The size of the team needed to preserve, collect, review and produce documents is driven by the scope of the litigation and the discovery requests at issue. Regardless of the size of the litigation, however, outside counsel and their staff will often make up most of the team needed to complete the tasks on the project plan. These tasks include, among others: interviewing witnesses to identify the location of documents responsive to discovery; reviewing documents to determine if they are responsive, privileged or entitled to be designated as "confidential" under any applicable confidentiality order(s); identifying and organizing key documents; and supervising the document vendor selected to help manage the documents to be produced in the litigation.

- In-house counsel - The team should include a representative from the client's legal department or at least a designated contact person in the legal department. In-house counsel are often indispensable to the document preservation and collection process. For example, they typically assist with: identifying and interviewing key witnesses; opening lines of communication between outside counsel and members of the client's IT department; helping define the proper scope of document preservation and collection; communicating with employees about the duty to preserve documents; and helping identify privileged documents.

- Information technology personnel - An electronic discovery team will almost always need help from one or more representatives of the client's IT department. They have unique knowledge of the client's computer networks and storage systems and are critical to any successful document preservation and collection effort. When appropriate, they can suspend rotation of backup tapes and preserve or copy information on networks that might otherwise be systematically archived, moved or, in some cases, even erased. They can also help locate information responsive to discovery and, when necessary, they can restore to human readable form data that has been archived or compressed. If the client has...