The Federal Rules of Civil Procedure (FRPC) now require litigants at the earliest stages of a case to know what potentially relevant ESI they have, where it is, how it is being maintained, and what it will cost to produce it. They also require the knowledge of whether their ESI is readily or not readily accessible, based on the burden of expense associated with its retrieval. Organizations that are able to show that certain information is not readily accessible often succeed in shifting significant costs of production to their opponents, or even force withdrawal of their opponents’ discovery requests.
The FRPC also requires the parties to discuss the form of their ESI productions, which may include production of ESI in its “native” format. Additionally, although destruction of ESI is often sanctionable, the FRCP provides protection against sanctions where ESI is destroyed by routine procedures such as automatic deletions, if they occurred in “good faith.”
All of this means that each business must have their respective “ESI houses” in order even if litigation is not pending. The consequences for businesses that do not have a plan in advance to meet requirements of the FRPC can be potentially substantial or even fatal.
Compliance with the rules and proper records retention planning require a data map. CSI assists in creation of data maps, which are essentially a catalogue of company records. Properly prepared, it should describe the company’s records by business unit, if appropriate, and should specify the various types of electronic media on which they are maintained. At the same time this data map is being compiled, the organization should note its actual retention practices and whether they differ from any written policies that may exist. All of these activities must be completed properly and within existing best practices in compliance with ongoing case precedent that often changes almost daily. To wait and not prepare proactively and stay on top of developments in the ever-changing world of technology and its application to the discovery process, can likewise be painful, expensive and sometimes fatal.
CSI can map companies’ and subsidiaries ESI, which represents a readily accessible resource of the sources, locations, formats and uses of the business’ records and the corresponding written and unwritten retention policies and practices. Under a multi-disciplinary team approach, our eDiscovery consultants consult with you and your team, to ensure that all key business units responsible for maintaining ESI are involved. These groups may include: legal, IT, compliance, records management, human resources, and any other business units who create or maintain ESI that may be subject to litigation or regulatory requirements now or in the future.