There is good news for security executives. At times it may simply be too onerous and burdensome for a company to track down every instance of discoverable data. The rules recognize this and permit a process to request a limit to ESI discovery. However, the respondent must identify what information it is not able to provide, explain to both the court and the plaintiff why it cannot comply, and provide sufficient detail for the court to evaluate costs and the likelihood of finding responsive data.
For example, how would a company that had purchased the intellectual assets of another company handle un-catalogued ESI archived data now stored in a third-party facility? This situation is not uncommon. The costs to discover that information may be transferred from the respondent to the plaintiff in some cases. So in their own litigation planning process, plaintiffs will need to be prepared to pay for a respondent's production. Note that while the data may not be responsive, it must still be preserved.
How to Take Action
You can help your organization comply with these new rules by taking the following steps:
• Know where your ESI is on a global basis including data mapping, formats, local and off-site locations, media, archiving rules and retention policies.
• Be prepared to preserve all relevant information when a civil action is reasonably foreseeable.
• Know what is data is reasonably accessible, what is not and why.
• Know the cost to produce all data regardless of accessibility.
• Consider whether presenting legacy data will require legacy applications.
• The ability to argue information inaccessibility is related to costs and burden, so know your numbers.
• Know how you will redact privileged ESI data beforehand.
Despite all of our best efforts, discoverable and responsive data can be innocently lost. To avoid an accusation of evidence spoliation, ensure that your department adheres to the company's legal hold policy and keep your legal department informed of electronic discovery problems in a timely manner.
And it wouldn't hurt to discuss ESI with your general counsel over a coffee.