Bits, Bytes, and Potential Pitfalls: E-Discovery Continued
I am back! As most bankruptcy practitioners already know, the volume of work has increased. This has lead to an ever increasing scarcity of free-time to devote to the blog. Important topics, however, need to be discussed so I soldier on.
In that vein, today is part two of my discussion regarding electronic discovery and its impact on the bankruptcy practitioner. Part one covered what electronically stored information (“ESI”) is generally, and why a bankruptcy practitioner should care. Part two covers some of the nuts and bolts needed in order to manage the handling of ESI.
Know how your client’s ESI is handled
In order to serve your client properly, a bankruptcy practitioner faced with discovery of ESI must know how the ESI is created, stored, and preserved. In essence, you must know who to talk to: the Information Technology (“IT”) professionals.
The first item of information that you will need to request from your client’s IT professionals is a detailed “map” of the client’s computer network. Click here for an example of a simple computer network. As you can see from the example, such a map provides information on all of the end users and the equipment used by everyone in the organization. This information is vital when it comes time to physically search the network for relevant information.
When looking at your particular client’s network map, it is also important to take note of the physical layout of the network, i.e., is it in one location (a local area network or "LAN," or maintained in multiple geographic locations in a city, state, or U.S., a wide area network or ("WAN"). The scope, and as a result, the cost, of the information gathering process will be impacted by the geographic location of the network, and could be a factor in filing for a protective order based on the burden of the search.
Under Federal Rules of Civil Procedure Rule 34(a), the constituent parts of an organization’s overall computer network include not only its LAN or WAN, off-site storage and back-up, and individual computers, it also includes all peripheral devices such as printers, scanners, flash drives, cell phones, and personal digital assistants ("PDAs"), etc.
Apart from the network map, it is also important to get a copy of the organization chart of the IT department so that you can speak directly to the people who will know where the information you need is hiding. Here is an example of an IT department organizational chart from Seton Hall University. As you can see from the example, an IT department could be quite vast and speaking to only one person in IT may not cut it.
Ideally, the people in the IT organization chart should have a firm grasp on the organization’s document retention policy (discussed in part one). This means that they will know in detail the dates of deletion and back-up for all of the organizations data.
Once you have a handle on your own organization’s ESI (something that should occur long before any actual litigation is initiated), you should turn your attention to the opposing parties’ ESI and the discovery necessary to obtain it. The same basic information discussed above is required to do a thorough job, i.e., network map and IT organization chart. A copy of the document retention policy and use policy of the opposing organization is also essential. All of these documents should be identified in the litigation hold letter that you will immediately send to opposing counsel (see part one).
Next time I will discuss the format of the ESI you should request and the 500 lb. gorilla in this conversation: cost.
