5. Update the Document Retention Policy

The amended federal rules governing discovery of electronic data require that the parties agree on a meet-and-confer timeline to address electronically stored information early in the discovery process. As a result, parties that are unable to determine the parameters of their data universe are at a severe disadvantage from the outset of any large-scale action. However, many companies do not have effective document management programs in place. Often, individual departments within the organization have their own information “silos” that are not shared or accessible by other departments. When the defendant corporation has a history of mergers and/or acquisitions, the situation is further complicated, since it is highly likely that legacy data from the acquired or merged organizations is literally spread all over the world, and in a variety of formats. Worst of all, some corporations have no formal document management or retention policies at all. For organizations in these situations, charting the data universe is an overwhelming task, and disclosing it on an aggressive meet-and-confer timeline is practically impossible.

To correct this critical shortcoming, corporations must first create a data map. Key persons with historical, operational, technical, and legal knowledge must investigate how and where the corporation’s data is stored. Once all of the data is found, decisions must be made regarding the retention or destruction of all the existing data and documents. In situations where the corporation has an existing document retention program, the effort is geared toward updating the retained materials and verifying the scope of the standards and policies in use. Companies that lack any sort of retention program must act quickly to remedy the deficiency. Hopefully, the development and implementation of a document retention policy can be executed prior to the onset of large-scale litigation. Even if this proves impossible, the corporation should still make the development of a current data map and a comprehensive document retention policy its highest priority – where discovery planning is concerned, it’s definitely better late than never.

Pre-litigation preparedness will reduce the potential for costly discovery mishaps and lay a foundation for a defensible litigation climate for the company’s future. One cost-effective way to ensure that the company has an accurate data map and an updated document retention and management program is to enlist the support of a trusted third-party consulting firm that understands both the legal and technological aspects of electronically stored information.

Our process at Altep includes a comprehensive examination and evaluation of the corporation’s document retention policies. This step includes interviews with the various departments, as well as a close look at the technological infrastructure, including hardware, software, data storage and connectivity. The results of the evaluation are incorporated into a global document retention and management strategy, which is presented to stakeholders from each department for input and revision. Once approved, the proposed retention program must be properly implemented and enforced. Details surrounding the implementation of the program must be clearly communicated to each of the departments within the organization, and training sessions must be developed and offered to all employees to ensure acceptance and compliance. Finally, the corporation must establish periodic checks to ensure continued cooperation with the retention policies. Throughout the process, all litigation hold and document retention efforts must be meticulously documented, including written instructions, actions taken, and technology used, updated and purchased.

Each of the suggestions outlined here involves a serious commitment from individuals at all levels within the organization. Corporations must emphasize the importance of successful litigation management to all employees. Certainly, healthy and profitable enterprises are characterized by such universal factors as excellent customer service, a robust and attractive product or service offering, and competitive pricing. However, such firms also have another, more subtle trait in common: the ability to defend themselves efficiently and effectively from serious threats, including the threat of large-scale, complex and expensive litigation. A well-designed and consistently implemented strategy for the management, retention and discovery of relevant data is an important weapon. Simply by adopting a proactive stance with regard to data management, corporations can retain the maximum value for every litigation dollar they must spend.

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