- Demand form opposing party is receive
- Law suit served
- Court issues preservation order
- Litigation is "reasonably foreseeable"
- Assemble a response team with at least the following:
- one IT person
- one attorney; and
- one subject matter expert (e.g. HR in employment case)
- Review relevant rules (any special requirements depending on jurisdiction?)
- Analyze claims to determine
- Subject matter of dispute
- Key players and departments involved
- Relevant time period (are potential relevant documents still being created or likely to be created?)
Scope of ESI to Preserve
- Reasonably calculated to lead to discovery of admissible evidence
- Reasonably likely to be requested in discovery
Identify what systems/devices are most likely to contain data
- Confirm frequency and retention of backups for those systems
- Identify which are accessible to key players and which are not
Develop your litigation response plan
- Designate those responsible for implementation and follow-up
- Identify potential Fed. R. Civ. Proc. 30(b)(6) witness
- Decide whether to suspend current retention policy (re: destruction of documents)
- e.g. backup tapes with "key player" documents may need to be retained
- Decide whether to establish separate servers to capture relevant data
- Decide whether to segregate relevant electronic documents so that current users/custodians cannot alter or delete them
- Record decision and rationale (this is crucial in defending your decisions and actions later)
Implement response plan
- Orally notify affected persons (both inside and outside agency)
- Issue litigation hold
- Instructions should come from counsel
- Identify point person to answer questions
- Describe claims with enough specificity so that individuals will know how to respond
- Describe categories of records to be preserved/nature of materials likely to be relevant
- Provide dates of preservation if possible
- You could have separate holds for IT personnel (e.g. save all backup tapes) versus key personnel in litigation.
- When necessary, plan for segregation of server space to capture data
- Monitor to ensure litigation hold has commenced
- Seek certification that backups and other forms of relevant data are being retained
Refine response plan
- Survey key players (what hardware do they have etc., anything that response team didn't know about)
- Through analysis of claims and in consultation with outside counsel first (if any) and opposing counsel (Rule 26(f) conference) address the following production issues:
- Emails in electronic form?
- Produce or save voicemails?
- Mirror any hard drives?
- Produce all versions of documents (paper and electronic, MS Word and Word Perfect)?
- Extract metadata?
- Produce calendars?
- Estimate costs
- Issue periodic reminders/refreshers to key players
- Remind departing employees about any continuing obligations
- Notify all persons as needed when litigation hold is lifted.
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