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Minding the Three P’s of Electronic Discovery: Policies, Pre-existing Plans, and Preservation

May 15, 2009

Robert Brownstone, Law & Technology Director at Fenwick & West, and Juleen Konkel co-authored an article that appeared in The Recorder. The article offers practical tips for developing a legally defensible protocol for Electronically Stored Information, or ESI.

By following the "Three P's"—Policies, Pre-existing Plans, and Preservation—organizations can equip themselves for potential litigations that require electronic discovery. Brownstone and Konkel suggest that organizations adopt proactive policies, such as a systemized approach to records retention and destruction. This may save ESI costs and facilitate access to relevant information. A retention policy may even offer some protection from sanctions.

Organizations should also assess their litigation-hold protocol and develop a plan prior to litigation as part of a retention policy. Brownstone and Konkel discuss specific steps that organizations may wish to take before litigations arise. At the minimum, a protocol should identify an individual point person to assess whether a hold is warranted. Organizations should also issue generic hold notices that explain ESI’s role as a significant discovery source and the importance of suspending ESI deletion.

Finally, potentially pertinent ESI must be preserved. Attorneys must understand their clients' retention program and discuss their back-up regimes. The opposite of retention is spoliation, or the destruction of information reasonably anticipated to be discoverable. Potential sanctions may include monetary penalties, exclusion of evidence and even an adverse jury or dismissal.

Even though the electronic discovery process entails hazards for clients and practitioners, adhering to systemized proactive and reactive approaches can keep an organization and its counsel upright as they surf the e-discovery waves.

Read the complete article on Law.com here.