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	Feature Article: Selecting Your Corporation's E-Discovery Team – Who Will Be in Your Lineup?
	Case Law Update
	News & Events

Feature Article: Selecting Your Corporation's E-Discovery Team – Who Will Be in Your Lineup?

Selecting members of your organization's e-discovery team requires as much strategy as a professional baseball coach putting together the most efficient infield or a card player selecting the best hand. As corporate counsel, your insights regarding the strengths of the individuals comprising the company's e-discovery team are imperative in selecting the most effective cadre of members – long before the summons arrives.

The composition of your team will depend on your risk exposure and the size of your company. An effective team, regardless of its size, should be comprised from a representative cross-section of corporate responsibility. A senior management member is essential to stress the importance of the team function to all members of the organization. Other designated individuals should include: legal counsel (inside and outside), records manager, human resources manager, chief information officer, chief financial officer, compliance officer and training professional. In addition, many organizations and firms are finding value in bringing in outside professionals to assist with e-discovery team responsibilities (e.g., reputable electronic discovery service providers, insurance companies and risk assessment professionals). Members of the e-discovery team must have knowledge of the existence and location of electronically stored information (ESI), and should understand and appreciate the needs and functions of the enterprise. They should also be effective communicators. Knowledgeable, concerned, articulate team members will be of valuable assistance to counsel in forming a dialogue with employees – stressing the importance of information content, management, authentication and preservation.

Before a lawsuit arises, one of the fundamental purposes of the e-discovery team is to assist with the creation of an inventory and map of your company's records systems (an ESI map). The ESI map is a snapshot to assist counsel in explaining the company, its information resources, information locations, retention and destruction practices and the relative ease of information accessibility. Effective e-discovery team members should be able to assist counsel in making the ESI map a user-friendly, graphical depiction of the information enterprise.

Likewise, e-discovery team members should also understand and inform counsel regarding the use of new forms of communication utilized by employees. This knowledge may be invaluable as counsel reviews the potential legal issues concerning instant messaging, wikis, blogs, social networking sites and other emerging forms of electronic communication. As information locations shift and practices change, e-discovery team members can assist counsel in periodically assessing the ESI map to ensure accuracy.

E-discovery team members should also have the knowledge to assist counsel in locating and selecting effective witnesses in the event it is necessary to authenticate electronic information. We all know the challenges placed on witnesses during discovery; witnesses called to authenticate ESI may be challenged just as zealously as other witnesses. Effective e-discovery team members may provide important insight to counsel regarding the knowledge and effectiveness of potential witnesses in providing testimony necessary for electronic records authentication. As such, witnesses must be articulate, knowledgeable and unflappable; counsel may have a tough time identifying custodians with these qualities across a large enterprise. [For a thorough discussion electronic record authentication, see Lorraine v. Markel American Insurance Co., 2007 U.S. Dist. LEXIS 33020 (D. Md. May 4, 2007).]

Though oversight of a records management policy and process is not the fundamental purpose of an e-discovery team, it will become a problem for the team if policies and procedures are not followed by other employees. As a continuing service, the e-discovery team should also have the ability to provide additional insights about whether your company's current records retention and destruction strategies are effective and whether communication and record retention would be better handled through a centralized (enterprise) system.

A solid knowledge of the tasks performed by an e-discovery response team is a key factor in selecting the right people for the team. Not only do you need to consider a representative cross-section of corporate responsibility, but you should also be cognizant of the team members' abilities to perform the relevant tasks. Selecting the best lineup for your e-discovery team will help your organization knock the next litigation out of the park.

Case Law Update

Court Orders Party to Identify Responsiveness of Documents
GP Indus., LLC v. Bachman., 2008 WL 1733606 (D.Neb. April 10, 2008). In this patent litigation, the court reconsidered the plaintiff's motion for sanctions and to compel after the defendant produced approximately 3,000 pages of documents "in a jumbled fashion" and refused to identify which documents were responsive to which document requests. The defendant argued the documents were produced as they were kept in the ordinary course of business and submitted an index. Finding the index to be untimely and unhelpful, the court determined the defendant did not comply with the previous court order. Additionally, the court ordered the defendant to identify the responsiveness of each document or potentially face the imposition of sanctions. The court also awarded the plaintiff costs associated with bringing the motion to compel.

In-House Impact: Courts expect corporations to follow discovery orders or risk harsh sanctions. Increasingly, corporations or their counsel must identify the responsiveness of document productions and organize them in a user-friendly manner. In-house counsel should plan ahead and designate a discovery task force in order to increase efficiency and minimize costs when the inevitable e-discovery situation arises.

Court Grants Motion to Amend Complaint to Include a Spoliation Claim
Ed Schmidt Pontiac-GMC Truck, Inc. v. DaimlerChrysler Motors Co., 2008 WL 668267 (N.D.Ohio Mar. 11, 2008). In this suit alleging breach of a settlement agreement, the plaintiff sought to amend the complaint to include a claim for spoliation following two years of discovery. The plaintiff alleged the defendant knowingly destroyed relevant evidence – specifically the defendant replaced employees' hard drives days before the plaintiff could make forensic images of those drives. The defendant argued that a spoliation claim would be futile and cause undue prejudice. Applying state law for spoliation and appropriate sanctions, the court granted the plaintiff's motion and allowed the plaintiff to add a claim of spoliation.

In-House Impact: Corporate counsel should consider establishing protocol with Human Resources and IT departments to image certain former employees' hard drives before recirculation. An ounce of prevention should be the rule of thumb when considering whether to image a former employee's hard drive.

News & Events

#1 E-Discovery Provider 7th Year in a Row
Kroll Ontrack has been named the #1 electronic discovery provider in the 13th Annual Am Law Tech Survey. This survey, appearing in the October issue of Law Firm Inc., marks the seventh consecutive year that Kroll Ontrack has been awarded this honor. Of the firms surveyed, 62% of the respondents identified Kroll Ontrack as their electronic discovery provider of choice. Polling CIOs and IT directors from the largest 200 law firms in America since 1995, the Am Law Tech Survey aims to reveal information about hardware, software, budgets, new developments and the latest legal trends. For the full story, please visit www.krollontrack.com/news-releases/.

Last Chance to Attend Redesigned Certification Course in 2008
The industry's legal technology thought leader has revamped its E-Discovery Certification Course for 2008 with updated topics, additional speakers, and dual track, customizable sessions to appeal to beginner, intermediate and advanced learners. The redesigned course curriculum is ideal for legal and technical professionals of all levels, including in-house counsel, law firm attorneys, litigation support professionals, paralegals and IT staff. Due to overwhelming response, we have decided to offer an additional course in December. For more information and to register, visit: www.krollontrack.com/certification-courses/.

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Visit www.krollontrack.com/upcoming-events/ for more information on these events and others.

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This newsletter is written by Gina Jytyla and Joni Shogren, Kroll Ontrack staff attorneys, with assistance from Kelly Kubacki and Meridith Socha, Kroll Ontrack law clerks. Ms. Shogren can be contacted by writing to jshogren@krollontrack.com.

For more information about electronic discovery and computer forensics services, contact Kroll Ontrack at 800 347 6105 or visit http://www.krollontrack.com.