Selecting Your Corporation’s Ediscovery Team: Who Will Be in Your Lineup?
Selecting members of your organization’s ediscovery team requires as much strategy as a professional baseball coach putting together the most efficient infield or a card player selecting the best hand. As corporate counsel, your insights regarding the strengths of the individuals comprising the company’s ediscovery team are imperative in selecting the most effective cadre of members – long before the summons arrives.
The composition of your team will depend on your risk exposure and the size of your company. An effective team, regardless of its size, should be comprised from a representative cross-section of corporate responsibility. A senior management member is essential to stress the importance of the team function to all members of the organization. Other designated individuals should include: legal counsel (inside and outside), records manager, human resources manager, chief information officer, chief financial officer, compliance officer and training professional. In addition, many organizations and firms are finding value in bringing in outside professionals to assist with ediscovery team responsibilities (e.g., reputable electronic discovery service providers, insurance companies and risk assessment professionals)
Members of the ediscovery team must have knowledge of the existence and location of electronically stored information (ESI), and should understand and appreciate the needs and functions of the enterprise. They should also be effective communicators. Knowledgeable, concerned, articulate team members will be of valuable assistance to counsel in forming a dialogue with employees – stressing the importance of information content, management, authentication and preservation.
Before a lawsuit arises, one of the fundamental purposes of the ediscovery team is to assist with the creation of an inventory and map of your company’s records systems (a data map). The data map is a snapshot to assist counsel in explaining the company, its information resources, information locations, retention and destruction practices, and the relative ease of information accessibility. Effective ediscovery team members should be able to assist counsel in making the data map a user-friendly, graphical depiction of the information enterprise.
Likewise, ediscovery team members should also understand and inform counsel regarding the use of new forms of communication utilized by employees. This knowledge may be invaluable as counsel reviews the potential legal issues concerning instant messaging, wikis, blogs, social networking sites and other emerging forms of electronic communication. As information locations shift and practices change, ediscovery team members can assist counsel in periodically assessing the data map to ensure accuracy.
Ediscovery team members should also have the knowledge to assist counsel in locating and selecting effective witnesses in the event it is necessary to authenticate electronic information. We all know the challenges placed on witnesses during discovery; witnesses called to authenticate ESI may be challenged just as zealously as other witnesses. Effective ediscovery team members may provide important insight to counsel regarding the knowledge and effectiveness of potential witnesses in providing testimony necessary for electronic records authentication. As such, witnesses must be articulate, knowledgeable and unflappable; counsel may have a tough time identifying custodians with these qualities across a large enterprise.
Though oversight of a records management policy and process is not the fundamental purpose of an ediscovery team, it will become a problem for the team if policies and procedures are not followed by other employees. As a continuing service, the ediscovery team should also have the ability to provide additional insights about whether your company’s current records retention and destruction strategies are effective and whether communication and record retention would be better handled through an archiving system.
A solid knowledge of the tasks performed by an ediscovery response team is a key factor in selecting the right people for the team. Not only do you need to consider a representative cross-section of corporate responsibility, but you should also be cognizant of the team members’ abilities to perform the relevant tasks. Selecting the best lineup for your ediscovery team will help your organization knock the next litigation out of the park.