Feature Article: Crossing the E-Discovery Professional Border – IT and Legal
	Litigation Minute: Choosing an Online Review Tool
	News & Events

Feature Article: Crossing the E-Discovery Professional Border – IT and Legal

The proliferation of technology into litigation encourages a new-found cooperation between an organization's Information Technology (IT) and Legal departments. While practitioners in these two professions often view issues from differing perspectives, they generally both agree that the difficult waters of electronic discovery cannot be successfully navigated unless IT and Legal work together. After all, few IT professionals understand the complexity of procedural and discovery rules in the context of litigation and few attorneys fully understand the intricacies of information technology.

The 2006 amendments to the Federal Rules of Civil Procedure require Legal and IT to be on the same page regarding the necessity of properly preserving and storing electronically stored information (ESI). Courts have begun to raise the e-discovery knowledge bar and are not allowing ignorance—on the part of IT or Legal—as an excuse. For example, in a recent case from the Northern District of California, Keithley v. Homestore.com, Inc., the court noted that any ignorance of technical personnel was not a legitimate excuse to preservation failures and ordered the defendants to pay over $250,000 in sanctions.

This case marks a shift toward what must become a more collaborative and team-oriented approach to e-discovery. In fact, thirty-five percent of US companies are now attributing e-discovery responsibilities to IT, representing an increase from eighteen percent of companies in 2007, according to Kroll Ontrack's Second Annual ESI Trends Report (2008). Legal and IT must work together during various stages of the process, beginning with the creation of a response team and implementing appropriate ESI strategies and all the way through establishing effective litigation hold procedures and properly managing data to help avoid sanctions.

Preparation for e-discovery must begin well before the threat of litigation occurs. Organizations are recognizing the importance of assembling an e-discovery response team to assist in formulating document retention and litigation response policies. It is important to remember that there is no "one-size fits all" approach to defining these policies. However, there are two general tips that transcend organizational differences.

Create an E-Discovery Response Team
First, an e-discovery response team should include representatives from many business lines including IT, Counsel—in-house and outside—Human Resources, Corporate Records Management and Business Line Managers, as well as an E-Discovery expert. The response team should maintain knowledge regarding where company data resides, how it is maintained, how it can be accessed, when it is destroyed and who has expert knowledge of the data.

Key members from IT should be represented on the e-discovery response team to ensure that consistency is maintained in the process. The response team should develop, test and maintain the litigation response plan and must ensure that all retention and destruction practices match the established policies. Additionally, Legal and IT should plan ahead for the most efficient and defensible manner of data collection and must work together to identify and raise awareness with likely custodian groups regarding their roles in the e-discovery process.

Establish and Communicate Litigation Holds
Legal and IT must maintain open channels of communication through the establishment of defensible litigation hold policies. Litigation holds must be put into place and communicated to the organization upon notice or reasonable anticipation of litigation. While Legal may be responsible for the communication (which should include a statement of purpose for the hold, a description of the issues and guidelines for determining which documents and data must be maintained), IT is often best positioned to determine how to effectively gather that information. Counsel and IT should also work together on a process to notify legal opponents and relevant third parties of their preservation duties.

An important part of the litigation hold and preservation process is suspending all document destruction policies. Together, IT and Legal should identify all business functions that may endanger ESI and halt all forms of routine drive "cleanup." Additionally, counsel and IT must keep detailed and accurate records regarding what data was preserved, how the data was preserved, and whether the data has been modified since preservation. The litigation hold should remain in effect until a final judgment or settlement is reached.

In today's digital age, open communication between IT and Legal is essential. The suggestions offered above are designed to increase understanding between the IT and Legal disciplines. An organization with established lines of dialogue between these two groups will be better positioned to effectively manage its data and avoid sanctions.

Special thanks to Richard Kessler, Kroll Ontrack managing consultant, for his assistance in writing this article. In his role, Mr. Kessler assists clients with responding to and preparing for litigation with respect to ESI and with the development and implementation of information and records management policies, procedures and processes supporting electronic discovery. He can be reached at rkessler@krollontrack.com for questions or comments.

Litigation Minute: Choosing an Online Review Tool

Document review is an ongoing concern for litigation teams, especially considering today's economy. While budgets tighten, the amount of electronically stored information continues to grow, creating the need for cost-effective management of document review. As mistakes cannot be afforded, proper use of technology is essential to ensure cost efficiency.

Whether you are considering your first online review tool or are a seasoned user, it is important to keep in mind some basic considerations to achieve optimal success. The first essential feature of any online review tool is security. The review tool must maintain a high degree of security for all documents, protected with 128 bit encryption – the industry standard security level for online data transmission. Additionally, you will want to be sure to consider tools with various user security levels. It may be beneficial if the tool's security features are flexible as they permit those managing the review to determine the degree of access and authority that should be allotted to reviewers.

An additional essential feature of an online review tool is robust search functionality. A review tool with concept searching capabilities and topic review technology in addition to sophisticated Boolean and proximity searching abilities will lessen the review burden by quickly locating relevant documents in the database.

Other important considerations include:

• Usability. The tool's layout should be easily navigable and simple to understand.
• Functionality. A sophisticated tool should offer categorization, redaction capabilities, highlighting, duplicate handling and other workflow features.
• Training. The service provider supplying the tool should provide in-house training, project management, and continuing service and support.

Keep in mind that technology is constantly advancing. Therefore, it is important to select a service provider that stays ahead of the curve by constantly updating the tool. A tool that contained cutting edge technology five years ago is likely no longer cutting edge.

The choice of review tool can not only lead to success in your case but also save your legal team valuable time and resources. Be sure to diligently consider multiple options before selecting your online document review tool.

News & Events

Ontrack Inview Analysis Module Further Streamlines the E-Discovery Process
The Ontrack^® Inview^™ Analysis Module by Kroll Ontrack is an early case assessment tool that helps legal teams streamline e-discovery by providing early visibility into case data before processing and review begins. Use the Ontrack Inview Analysis Module to investigate your data using concept searching, topic grouping, and additional advanced visualization features; identify potential custodians; and decrease the size of your document set by including only the most relevant documents. This service will help you gain control over the e-discovery process and significantly reduce the time and expense associated with e-discovery and litigation. For more information, please visit www.krollontrack.com/news-releases/?getPressRelease=61229.

Enhanced E-Discovery Certification Course Propels Litigation Teams to New Heights
Given the current economic condition, corporate clients are being forced to cut back legal and IT budgets, while the threat of sanctions due to improper ESI handling continues to rise. Become e-discovery certified to prevent your firm or corporation from becoming the next headline. Kroll Ontrack's 2009 E-Discovery Certification Course is ideal for legal and technical professionals of all levels, especially in-house counsel, law firm attorneys, litigation support professionals, paralegals, IT staff, and members of the judiciary. Upon completion of this program, you will be able to make informed decisions regarding ESI, be prepared to negotiate at the meet and confer and understand the most current e-discovery law. For more information and to register for an upcoming course, visit www.krollontrack.com/certification-courses/.

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This newsletter was written by Kelly Kubacki and Meridith Socha, Kroll Ontrack Law Clerks, with assistance from Regina Jytyla, Kroll Ontrack Managing Staff Attorney. Ms. Kubacki can be contacted by writing to kkubacki@krollontrack.com.

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