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Lawyers discuss e-discovery gotchas

Jo Maitland, News Director

NEW YORK -- Roughly 10,000 attendees showed up for the Legal Tech conference in New York this week, including lawyers, IT directors and CIOs, all looking to learn more about e-discovery. Top of mind were the Federal Rules of Civil Procedure (FRCP), updated in December, governing the recovery of electronic information.

"The temptation is to go out and try and collect everything, but you'll find that the data generated around whatever issue you're under litigation for just goes on and on," said John Ritter, vice president of corporate information security at Bank of America, during a panel session on developing a corporate plan for e-discovery. "You can't run a business and go out and collect 2,000 people's data."

He advised companies to build a repeatable process that locks down key people and important data. "Every time we get a claim we follow the same steps," he said. "If you show good faith effort, it puts you in a good place [with the courts] and the rules contemplate that." Having a retention policy, educating employees on it, and enforcing and updating it, is crucial he said.

But drawing up a retention policy that keeps everyone happy is easier said than done. Some companies have been too draconian with retention and deletion policies, according to Jim Lynch, a partner with Latham & Watkins LLP. He mentioned a client that was recycling emails every two weeks. "The

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court casts a dark eye on that as they thought it was deliberately keeping documents from opposing parties …it's a cautionary tale."

Several attendees asked about who should be responsible for the data once it's under litigation, the IT department or the legal team? Lynch said that the responsibility would ultimately fall to the most senior people at the company "with in-house legal calling the shots."

He warned companies to be wary of best practices in the area of e-discovery as there is no standard for data retention. "It's like calling a doctor and saying can you tell me what's wrong with me, without that doctor ever seeing you …without knowing anything about a company's information or information systems there is no way to provide a best practice around data retention."

Talk to the experts

Bradley Bondi, partner at Kirkland & Ellis LLP, and Ariana Tadler, partner at Milberg Weiss LLP, both advised companies in litigation and discovery proceedings to involve an outside expert early to talk to the IT department, especially in large companies with complex systems.

"The outside expert should know everything about your IT systems, to the extent that they will swear under oath on your behalf, about information pertaining to them," Bondi said. "There are a lot of email discovery products on the market that quite frankly don't work or don't work as they are supposed to …Check these out carefully, and really kick the tires on them," he advised.

Other legal experts pointed out that many e-discovery tools only work with "active data" or data that is currently in use, which is not very helpful if you need to recover emails archived six months ago. When deciding on an e-discovery tool, the advice was to look at whether you are conducting a small review and don't expect to be in litigation very often, or conversely if you have overlapping litigation and might need a repository system.

Finally, many judges are not up to date on all the new terms when it comes to e-discovery. "Offer the judge resources to better understand what you are presenting or ask for a special master," said Tadler. This is a specialist that a judge can assign to oversee technical details of a case.