White Paper Summary

Six Steps to Managing ESI under FRCP

Most of an organization’s information and documents are either created or received electronically. According to a recent study from UC Berkeley, more than 96% of all information in an enterprise is in digital format, and even 70% of all paper documents are copies of electronic documents. While paper is not going away anytime soon, it typically represents the minority of documents. Litigators have learned that electronically stored information (ESI) can contain significant evidence relevant to a lawsuit, and they target these electronic documents in their discovery efforts. E-mail and other types of ESI are typically the first type of documents targeted in discovery. Some consider an electronic document such as e-mail not a “real” record. 

The law takes a different view, as clarified in the December 1, 2006 amendments to the Federal Rules of Civil Procedure (FRCP) that govern court procedures for managing civil suits in the United States district courts. These FRCP changes represented several years of debate at various levels and will have a significant impact on electronic discovery and the management of electronic data within organizations that operate in the United States. These rules regard information stored in electronic form as electronic equivalents of paper documents. This means that in a lawsuit, electronic information is subject to discovery – that is, production to the opposing party –even if the information also is printed in paper form. Companies that cannot locate ESI quickly face severe consequences, including sanctions from the court, or potentially being forced to expand discovery efforts across larger areas within the enterprise.

The best way to manage discovery and avoid these consequences is to prepare for discovery before litigation occurs. The following steps are critical to managing ESI discovery.

Litigation always, has been, and will continue to be, a reality of doing business. What is changing, however, is discovery and its focus on electronically stored information (often abbreviated ESI). Recent amendments to the Federal Rules of Civil Procedure concerning the discovery of ESI coupled with the explosive growth of electronically stored documents are exposing organizations to new risks and costs during litigation and the subsequent discovery. 

Under these new constraints, organizations need to be aware of these changes, and take specific steps to become litigation ready. Becoming litigation ready is about knowing what ESI you have, where you have it, and how readily you can access it. Retention policies should define defensible data expiration processes, and litigation hold procedures should enable quick and effective preservation of evidence. The best way to manage discovery is to prepare for it before litigation occurs. 

Becoming litigation ready for ESI cannot be mastered by the Legal group alone. Rather it requires a joint effort between Legal and IT. This pair of white papers list six critical steps both Legal and IT can take to manage ESI. 

This is a two-part series that covers the following six steps:

  1. Create an ESI Survey Data Map
  2. Update Your Records Retention and Deletion Policy - and then Execute It
  3. Establish Effective Litigation Hold and Discovery Processes
  4. Delete Documents that the Business Does Not Need
  5. Designate and Prepare a Rule 30(b)(6) Witness
  6. Audit Your Process and Periodically Refresh Your Policy

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