I prefer to bifurcate readiness and response into separate groups, although some consider them as a single team/process. I’ve covered litigation readiness several times and for the purposes of this post, I’ll assume that you’ve followed my prior recommendations to the letter and have a readiness team in place (I’m allowed to assume that because it’s my blog).
That was the easy part.
Now, the alarm bell has sounded – a litigation hold has been ordered in response to – or in anticipation of – litigation. What do you do next? There are a lot of lists out there, but actually, you can envision the path by thinking in terms of ‘who, what, when, where and why’?
WHO? – THE RESPONSE TEAM
You already have the “readiness” team – now you need the “response” team. WHO will be on it? Maybe it’ll be the same people, maybe not, but what you do at the outset will establish the tone for everything that follows thereafter. You’ll need your technology and legal resources to come together at this point and take care to make sure everybody is clear about their specific role. WHO will document the procedures? WHO will serve as your expert witness?
If you’re either anticipating or responding to litigation, then you have a good idea of WHAT data will be involved. If not, start thinking about how to find out. Designate the team members responsible for identifying, accumulating and preserving ESI. WHAT will it cost to review and produce? Will that factor into the proceedings?
WHEN did you issue the litigation hold? WHEN did the relevant custodians receive the notice? WHEN will you expect acknowledgment from them? WHEN are the relevant dates at issue in the action and WHEN did they begin preserving that data? WHEN will you issue periodic reminders to the custodians to assure continued compliance with the hold? WHEN will the hold be released?
WHERE’S the ESI? Refer to your data map so you know WHERE you’ll be looking. WHERE are the ‘nooks & crannies’; essentially anyWHERE that relevant ESI may exist (hint: it might not be on your map). WHERE will you store the ESI for review? Do you have sufficient space in-house or will you need an outside vendor?
WHY is the ESI relevant to the action and therefore discoverable? WHY should it be produced? WHY is it privileged?
Depending on what stage you have reached in your own readiness and response programs, you may be asking yourself HOW you’re going to accomplish all of this. It might not be easy, but there are resources available to you and proper planning in advance will go a long way to assure an even flow.