Identify an Electronically Stored Information (ESI) Management team and assign aTeam Leader. This person should be able to confidently testify in court about thesteps the company took to meet its electronic discovery obligations. The goal is tohave the court agree that the company’s response was appropriate and reasonableunder the circumstances.
Understand your ESI architecture such that when any new suit is filed, you need onlyto look at your ESI map to know where your ESI is located. If you have to trackdown ESI with every new lawsuit, you are not organized. If you have the right toobtain documents from third parties by contract or otherwise such that the thirdparty’s documents are within your “possession, custody, or control,” include thosethird parties on your ESI map.
Determine what ESI is not reasonably accessible (NRA) because of undue burden or cost. The ESI Team Leader will need to testify at a deposition – and perhaps in court – about why the ESI is NRA, the nature and extent of the burden and expense, and the steps the Company took to mitigate those expenses.
Develop an ESI Management policy for employees. Consider the habits of your employees and if you want them to change relative to your litigation risks. Address archiving e-mail on hard drives; copying documents to flash drives; develop a system to address back-up tape storage; determine if your employees e-mail company documents to their home e-mail accounts; use of laptops or home computers; employee backup of their own computers; maintenance of prior versions of final documents; saving voicemail or instant messages, etc.
Stay current. Mergers and acquisitions, spin-offs, employee departures, computer conversions, and software upgrades are some of the many reasons to update your ESI map. Periodically evaluate whether you need all the electronic information you are storing – don’t keep what you don’t need.
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