The process of electronic discovery can be a rather expensive one, depending on the circumstances of the case in question. The risks are especially disproportionate for larger organizations because of the significantly greater volume of email and digital information they generate.
In addition, the most burdensome eDiscovery requests typically revolve around securities fraud, tort and employment cases or other types of lawsuits in which individuals or small companies sue larger companies or entities. When big companies go head to head in court, eDiscovery requests could place considerable burdens on both sides.
In many cases, eDiscovery is necessary to uncover evidence needed to proceed with the case. Therefore, it is important to find ways to reduce the potential burden of that process to ensure the case moves forward as efficiently and cost-effectively as possible.
Below are a few ways to reduce the burdens of the eDiscovery process, leading to more efficient litigation.
Organizations should have an email system in place, rather than simply a policy that requires users to actually actively engage in certain tasks. A good email system will use technology to automatically purge historic emails that are not official communications, which must be maintained pursuant to company policies.
Any company policies regarding email use should be considered individual components of the company’s electronic record management strategies and other components, including employee education and the systems established for purging email messages.
To help decrease the risk of being subject to overly broad court orders and retention obligations, companies should implement policies that clarify the difference between official company emails and personal or unofficial emails. The former must be treated similarly to paper documents and go through the same document retention policies, while the latter should be regularly purged.
Any official email communications determined to be official should be either printed and filed or stored electronically in special locations within a certain period of time after each message is sent. Although this may be a cumbersome process, an organized filing system will greatly reduce the burden of any eDiscovery process your company might need to adhere to in the future.
Some companies assign employees two different email accounts—one for official business matters and another for personal and/or administrative communications. This is an easier system to implement than a policy that requires employees to determine for themselves whether individual messages are official or unofficial.
On the other hand, companies that designate an email account as an official business account might have additional obligations to retain any messages sent to or from that account, if messages are to be automatically stored on a digital platform.
Just as paper records have traditionally been either saved or discarded on a daily basis by employees making judgment calls about their significance, so too can digital documents be purged. The process becomes much less cumbersome when it is automated.
A UNIX-based system can require recipients to affirmatively save email messages to avoid their automatic deletion after the message is read. Most large corporations use email programs that provide for email messages to remain in inboxes unless affirmatively deleted. An affirmative saving functionality increases the number of messages being purged regularly—although it does offer the chance that a person will forget to save a message and lead to it being automatically purged.
Companies that use email programs with affirmative deletion should regularly purge any backed-up historic emails, as the hard drives containing them are likely filled with trivial messages. It would be a logistical nightmare to sort through these historical backups in eDiscovery. This again demonstrates the importance of finding ways to designate official and unofficial communications.
The eDiscovery process does not have to be an unreasonable burden on a business or organization. There are options and systems available to make this process easier and more efficient for all parties involved.