You’re sitting in your office late on a Friday afternoon looking forward to a relaxing weekend with family and friends. Just as you’re getting ready to consecrate another week into the annals of legal history, a Request for Production lands on your desk. They don’t want much—just a few pertinent documents from your clients. And by “documents” they mean, of course, “everything written, printed, recorded, reproduced or computerized.” Whether it was written on a clay tablet 4,000 years ago or stored on the CEO’s brand new PDA two minutes ago, they want it. So the dream of the perfect weekend comes crashing back to reality as you contemplate the oh-so-many potential sources for discovery—especially the “computerized” ones. Large black clouds gather over your head, and a sense of impending doom engulfs you. Somewhere in the distance you hear the cry of the wolf.

That may be a little overly dramatic (a little), but a document production means a lot more today than just handing over paper documents. Information in the digital age continues to grow exponentially in a variety of formats and from many different sources. Knowing what your clients have is the first step in constructing a defense; but with so much information out there, where do you start? It often falls to the firm’s paralegals and IT staff to keep their attorneys up-to-date on a client’s potential data sources. Working together, they should identify the scope of client data, understand how it’s controlled and used, and know how to access and produce it should the wolf appear at the door.

Document / Data Control and Retention

In any document request it is up to the attorney to decide what is relevant to the production and what is not. This decision-making process is complicated by the sheer volume of electronic data found in the modern office. One effective means of assessing your client’s digital data is to investigate and understand data control and retention policies and procedures. The following questions should be discussed with your client concerning document/data control and retention:

Is there an established corporate document or data retention plan (most plans are for a seven-year time span)? Is it enforced? Who is responsible for monitoring the plan? How is data stored and archived? What gets archived? What backup software/system is used? Is there a rotation of backup tapes? How often is data being archived? Is there a retention period for archived data? What is the policy on destruction of corporate data? Is data ever retired or destroyed?

Where is archived data stored? Is there an in-house or off-site facility where backup tapes are kept? Is it secure? What is the backup plan for file servers and workstations? Are company issued laptops being backed up in any way?

What is the corporate retention policy for storing e-mail? Is e-mail stored on a network server, personal computers or both? What company information can be found on the corporate Internet or intranet sites. Is usage monitored? Are logs generated? If instant messaging services are used, are they tracked and/or logged? Do employees use personal electronic devices such as computers, laptops, cell phones, PDAs, digital cameras or video and audio recording devices for company business? Is the information from these devices being monitored or archived? Do these devices generate logs that can be accessed for tracking and research purposes?

Separating the Wheat from the Chaff

Once you understand these digital management policies, you can investigate the client’s online and archived data sources. Attorneys, paralegals and IT staff members understand that relevant documents and data exist in a variety of formats and applications. There are electronic documents (letters, memos, spreadsheets, faxes, reports, summaries, statements, papers, e-books, articles and records); databases (document control, contact management, timekeeping and billing); visual and audio media (illustrations, charts, diagrams, scanned photographs, image files and video and audio recordings); and online information accessed through the corporate Internet/intranet sites.

Data sources will become clearer during the information-gathering phase of the production. A paralegal should know not only to ask for what is needed but also to probe for the history of the information. It is important for the legal team to understand how the information is created, accessed, used, stored, even destroyed. By asking the right questions you can piece together the big picture of what information is out there and how it is used. Some questions you may want to ask as you search for information sources are:

Can you tell me how this was generated? What application was used to create it? What applications do you use? Where is this data stored? Who has access to this information? Who maintains and controls the information? How far back does it go? Is there an archive? Are there any applications that you now use that replaced older applications? Were there any substantial differences in the way the old and new applications functioned?

Pulling It All Together

Over the past 20 years, changes in technology have been fast and furious. Coordinating and integrating data from multiple sources and proprietary applications require planning and technical expertise. Applications still in use today may have been discontinued years ago. Previous versions may not be compatible with the most recent version of the same application. Some applications have auto-updating features that make version control and chain of custody a challenge. Many applications also generate metadata (data about the data). Gathering metadata may shed further light on the history and content of a document. Would it be helpful to know how many recipients of an e-mail message actually opened it? Would you like to know the last 10 authors of a given Microsoft Word document? Can you retrieve all the edits made to a specific document?

At some point, all these questions must be answered in a way that allows the attorney to make valid and timely decisions about what is and is not relevant to the document production. There are many approaches. Whether you tackle an electronic discovery with in-house personnel or bring in a third-party expert, at the end of the day the old Boy Scout motto still holds true: “Be Prepared.” It’s never too early to understand how your clients manage and use digital information. Why risk reaching the time when understanding comes too late?

About our author . . .

Chris May is President of InfoEdge Technology, Inc. (www.nfo.com), which provides information management consulting and litigation support solutions such as InfoDox™, a secure online document repository. Contact Chris at
(800) 656 8444 or email him at infoedge@nfo.com.

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