eDiscovery is now a firmly entrenched element of modern-day litigation. Yet, the fact that eDiscovery is ubiquitous does not make compliance with eDiscovery obligations any simpler for legal personnel and those who seek such services.
Keep reading for tips on preserving and collecting data and best practices for preparing for litigation.
The volume of electronically stored information (ESI) has been on an upswing for years, but few consider the difficulties that new smartphones and messaging apps can create for those who must identify and collect data for legal matters. For example, according to a recent article from author Adam Cohen, “New technology usually means new challenges for compliance, with legal obligations to monitor, search, and disclose ESI…created using such new technology.”
Cohen explains that keeping up with such technology can frustrate attorneys who must recognize the limitations of existing tools for extracting evolving forms of critical data from mobile devices. When “technical experts” inform lawyers that current technology cannot unearth certain evidence, “[r]ed flags should go up. At this point, lawyers must rely on their ‘understanding and creativity’ and find new ways to discover evidence to preserve their credibility and avoid spoliation sanctions.”
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As mentioned above, it’s clear that despite the challenges for legal personnel and those in need of legal services, eDiscovery is an integral part of 21st-century litigation. As a result, a system that once depended on novice attorneys sorting through sheaves of documents in droves is no longer the status quo.
In “How to Better Prepare Your Company for Litigation and eDiscovery,” Umar Zulquarnain shares that “preparation for unanticipated litigation requires being better prepared to comply with eDiscovery obligations.” This can be especially challenging for those outside of the legal world.
Zulquarnain explains that with a focus on these primary areas, companies can be better equipped should the need for litigation arise:
• Records Retention Policy: A records retention policy can “ensure the proper handling of electronic data.” This can be achieved by establishing a records retention committee—composed of legal, IT, executives and records personnel—tasked with evaluating applicable statutes and regulations and developing a detailed plan for retaining and destroying records.
• Litigation Response Strategy: Companies should also consider establishing a litigation response strategy, including a sound preservation protocol. They may also want to build relationships with outside vendors who can hit the ground running when litigation arises.
• General Counsel Training: Lastly, Zulquarnain imparts that “a company’s General Counsel is a key player in eDiscovery strategy.” While many retain outside counsel for litigation, employing in-house counsel well-versed in eDiscovery and records retention can contribute to a “competitive legal edge.”
To read the full article, click here.
As these articles confirm, knowledge is power when it comes to succeeding in eDiscovery.
Don’t let unforeseen litigation catch you unaware; click here to read more thought leadership on eDiscovery.