Good Faith Preservation Efforts for Corporations and Counsel
Because many corporations don't have the capability or knowledge to collect ESI in a defensible fashion, they are at risk of spoliation and sanctions if the proper methods to collect digital evidence aren't used. As such, the court is increasingly placing the burden on both law firms and corporations to ensure that they demonstrate that reasonable and good faith efforts were made to conduct or manage the data preservation and collection processes. The following are a few suggestions for maintaining good faith efforts for both corporations and counsel:
GOOD FAITH EFFORTS FOR CORPORATIONS:
1) Develop company policies that address document retention, document destruction and legal holds.
2) Regularly audit policies to ensure that they are being followed.
3) Invest in software to capture all facets of company data.
4) Assess the computer forensic capabilities of the IT sfaff.
5) Call experts if/when needed.
GOOD FAITH EFFORTS FOR COUNSEL:
1) Advise corporations of the risk of computer forensic self-collection.
2) Assist corporations by calculating a risk v. benenfit analysis. Compare the varying costs of the EDRM stages during litigation and assess the risk of a botched computer forensics collection.
3) Engage a computer forensic consultant when necessary.
4) Effectively communicate the legal hold in writing and follow up on it.
5) Interview all possible custodians.
6) Document all decisions and actions.
7) Oversee and manage all aspects of the process.