Strictly from an e-Discovery perspective, a producing party is faced with a lot of challenges and important decisions to make in a relatively short period of time.  In fact, when it comes to the preservation hold duties of a litigant, a number of preemptive actions are likely to precede the actual filing of a complaint. This is often referred to as the "Preservation Trigger Event".

It is at this same precise triggering event that an important question has to be considered by all the players in an imminent lawsuit, "Who actually will be a Producing Party?"

When it comes to electronically stored information (ESI), the odds that both parties in a lawsuit will be requested to produce ESI is extremely high.  So too, will their obligations to implement an effective Preservation-Hold on most sources where responsive, relevant ESI is stored. Implementing a Preservation-Hold directive is but one element of a process that CyberControls is prepared to assist your litigation team and your client with that should be fully documented and defensible upon challenge.

Even though every case varies in size and complexity, it is advisable to rely upon the specialized expertise and insight of outside practitioners who deal with the complexities of ESI on a daily basis.

As an example: CyberControls' forensic specialists are available to perform computer forensic imaging of identified devices of interest that are required to remain active but might otherwise result in the unintentional destruction of relevant ESI being requested by an opponent. This type of oversight can often lead to accusations of spoliation later on.  This might to laptop computers, network servers, mobile phones, and an assortment of external media devices. Once the forensic imaging has been performed, the producing party is assured that all future risks of inadvertent spoliation have been eliminated. 

Throughout the early stages of pretrial preparation, it is easy to get distracted away from sorting through an array of technology questions and issues that need to be finalized before the actual meet and confer.  For the producing party, having a general outline of the preservation-hold procedures to present to one's opponent will be an effective approach to discussing that important topic.  Equally important to have prepared, will be a thorough inventory of all sources of ESI and their respective custodians identified.  These are but a few of the specific topics CyberControls recommends for a producing party to be ready for at the meet and confer.  For some helpful tips on preliminary planning click here.  


 

The discovery plan should be reasonable and flexible, but not overly-detailed. It is important to remember, whatever standards you adopt for yourself to follow will be those you are held to if the matter is ever reviewed. Keep discovery plans simple, broad and flexible. The discovery plan might include:

• A detailed map of the client’s IT infrastructure, including company and personal computers, onsite and offsite storage, PDA users and user policies, and related home computer use.
• A description of backup, storage and deletion policies and practices.
• Identification of all persons who may potentially have relevant information.
• A “litigation hold” order interrupting deletion policies and practices for relevant persons and resources.
• A list of all resources searched for relevant information, together with a list of potentially relevant resources not searched because of accessibility problems.
• A list of all search terms and methodologies used to search for relevant information.
• A list of all persons to whom discovery requests were circulated for review in advance of production.
• Policies to periodically monitor preservation compliance by the client and client’s agents.
• Policies to supplement discovery searches and productions when “red flag” information becomes known over the course of litigation that suggests new document resources or custodians need to be included in document production.
• A policy for counsel to re-check the current state of discovery plan compliance before signing additional discovery responses or pleadings or making important arguments in court.
  
  
   

Not surprisingly, the responding party may have the need to issue discovery requests of their own. Therefore, it is important to craft strong production requests that will not come full circle back at them from the opposing side.  CyberControls will assist its clients with the documentation necessary to resist overly broad and burdensome production requests. On addition, CyberControls' e-Discovery consultants will provide experienced recommendations in the following areas:

• e-Discovery Searching Methodologies that are reasonable and defensible
• Objective Assessments of Preservation/Production Costs to object to overly broad and burdensome discovery requests
• Protective Order Options to limit the scope and nature of e-Discovery requests or computer examinations
• Court-Approved Computer Inspection Protocols
• "Quick Peek" Productions while Preserving Privilege under Fed. R. Evid. 502