Challenges of Running an e-Discovery Team

By Roger Poole posted 05-05-2010 13:13


**Views expressed in this blog are my personal views and not those of my employer. Any reference to any living person or organisation, past or present, is entirely co-incidental**

Where are e-Discovery requests likely to come from? These requests (within the Financial Services industry) are likely to emanate from one of the following:-

  • Financial Services Authority (FSA) in the UK
  • Securities Exchange Authority (SEC) in the US
  • Commodities Futures Trading Commission (CFTC)
  • Financial Industry Regulatory Authority (FINRA)
  • HM Revenue and Customs (HMRC) in the UK
  • External Legal Counsel

The result of failing to identify/provide the Records when required is likely to be:-

  • reputational risk – the risk of damage to your organisation as a result of negative publicity
  • a fine
  • imprisonment
  • a fine and imprisonment

From the above, we can see it is essential to have a defined (and implemented) procedural framework for dealing with e-Discovery requests. Key relationships should be developed with the following:-

  • Regulators
  • External and Internal Legal Counsel
  • Compliance
  • HR
  • Information Risk Management
  • technology

This will (probably) result in closer co-operation, less duplication of effort, reduced costs and a quicker response time.

How should an organisation deal with such requests and what work, if any, can be outsourced?

An approach is to do as much work in-house as is possible. This approach allows your organisation to maintain some control over the resources and costs of such an investigation.  This approach requires a number of steps which are essential for a successful resolution. There include:-

  • Work with Internal/external Legal Counsel to determine relevant approach, key criteria and stakeholders. Push back on requests for “all emails for the last year for the entire organisation”
  • Scope and budget this project appropriately, ensuring sign-off for the proposed budget – this helps the focus on costs
  • Ensure you stick to the scope when creating search parameters
  • Hold regular meetings with the stakeholders to update on progress and any issues
  • Ensure you can deliver within the agreed time periods
  • Use de-duplicate, legal redaction and other tools/practices to refine your search results
  • Ensure you have an auditable Chain of Custody throughout to ensure admissibility of evidence

Any work you can undertake will save significant sums in terms of the potential legal costs from External Legal Counsel.

e-Discovery requests can involve many different media formats/types – developing a good working relationship with the relevant subject matter experts will help in determining the location of these records.

Once you have retrieved the “in scope” records take care to deliver the requested format. Take care also to ensure that appropriate controls are in place to protect these records e.g. encrypt any media used to transport records.  

Utilising the above approach will ensure you retain control over the searches, retain the knowledge within your company and keep control (and transparency) over budgets and costs!

Happy searching….

#teamwork #ROI #Search #ElectronicRecordsManagement #governance #e-discovery