Part III: The Legal Profile
An often overlooked link between the IT footprint and the FRCP is the notion of “source mapping” or “mapping of sources” for the Rule 26f “Meet & Confer Conference” where the parties need to discuss and disclose potentially responsive ESI by “category or type.” If the organization understands what systems and repositories contain potentially responsive information, that ESI can be managed appropriately for the matter at hand and used as a source for future eDiscovery. Most organizations have certain types of legal and regulatory challenges, like employment, Intellectual property or other types of litigation and key regulatory issues which form a pattern of a “Profile.”
If these systems and applications are identified or “mapped,” a categorization and classification of systems, data and ESI can be developed and used as an early assessment tool and a strategic tool to ensure proper preservation of ESI and notification of potential custodians.
Put another way, employment cases and Intellectual Property cases may share some common sources of ESI (email, file shares, collaborative spaces) but typically also have systems and repositories for business information related to the particular business function that is subject of the legal inquiry. It is rare that all systems or applications would contain responsive ESI.
Here is an opportunity to move away from the “Hold All” order by developing a defensible response protocol for legal and regulatory matters, targeting responsive ESI and managing the non-responsive ESI according to standard business practices. If you can’t find the handful of relevant ESI in the terabytes of data, then “retain all” may look like the “best option” in a bad situation.
Here is some hidden ROI:
Once Responsive ESI is identified, preserved and collected, it is a reasonable assumption that the non-responsive ESI is not subject to legal hold. Instead it is subject to ordinary lifecycle management (RM) or part of the organization’s GRC efforts within a sound Information Governance Program and would only be retained based on categorization and classification of information.
Leverage the opportunity to do some “house cleaning”… gain file visibility and perform file remediation… dispose of ESI that has outlived its useful life in a defensible, scalable manner.
Understanding all these different elements of the People, Process and Technology in your eDiscovery process is the key to controlling costs and mitigating risks.