eDiscovery Lessons Learned from the BP Crisis




Editor’s Note: This post is a featured guest post by one of our IAI University Partners, Barry Murphy from the eDiscoveryJournal.

There is a great article from Christy Burke of Burke & Company about the eDiscovery disaster that could arise from the BP oil spill.

eDiscovery and Safety Preparedness - Photo source: kallejipp / photocase.com

Photo source: kallejipp / photocase.com

Christy’s article is detailed and comprehensive – a must-read for anyone wondering about the eDiscovery implications for the broader market and how to plan for some of those issues.

From an information governance perspective, there are some quick takeaways I’d like to list (because this is yet another example of how proactive planning could avert the potential eDiscovery nightmares that can arise from extreme situations like this one):

  • This is an example of preservation duties kicking in before a lawsuit is filed.  In my mind, the legal hold process should kick in within hours of the BP realizing that an incident occurred.  This also shines the light on how important it is to pre-plan for legal hold.  When an incident occurs, an organization should aspire to be able to go into one system, set up the legal hold, and feel confident that most sources of information will be automatically preserved.
  • Managing eDiscovery across country lines and into hard-to-reach locations (like oil rigs) will be the expectation.  I’m not trying to say that BP specifically needs to get it 100% in this situation, but now that this incident has occurred, the next global enterprise that faces a similar situation will have a hard time arguing that information is not accessible.
  • Proactive planning is more important than ever.  Organizations that don’t know where information lives, how it is accessed and stored at dispersed locations, or have the ability to quickly preserve it when necessary will be at a real disadvantage when it comes to eDiscovery.  There will always be a need for consulting expertise and forensic experts when it comes to collecting from certain sources, but it’s not a bad goal to shoot for an 80/20 rule – 80% of information can be automatically preserved and collected when needed.
  • Related to proactive planning is the need for reasonable retention policies and marriage of those policies with processes like backup tape recycling.  Reasonable retention policies allow organizations to get rid of information that is no longer useful and would otherwise muddle eDiscovery down the  road.  But, if retention policies exist and aren’t married with backup tape recycling schedules, there is a good possibility that the organization will need to conduct discovery on those backup tapes anyway.  So, in order to keep costs down, start getting rid of information that isn’t needed and make sure it’s gone across all data sources.

The eDiscovery lessons from this incident will be much clearer in a few months as we begin to see what kind of eDiscovery activity actually plays out.  Hopefully, the news will be of the positive variety, as opposed to stories of nightmare collection efforts and inability to preserve information in a timely and reasonable manner.

- end article -

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The “eDiscovery: From Legal Imperatives to Technical Solutions“ course has four modules and includes a 30-minute live call with Barry to discuss the course or any eDiscovery project you have in play.

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Understanding eDiscovery

The first module of the "eDiscovery: From Legal Imperatives to Technical Solutions" course, Module 1: Understanding eDiscovery, sets the foundation for understanding the drivers behind eDiscovery, including:

  • Understanding and Defining eDiscovery
  • Federal Rules of Civil Procedure
  • The Electronic Discovery Reference Model

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eDiscovery Imperative

The second module of the "eDiscovery: From Legal Imperatives to Technical Solutions" course, Module 2: The eDiscovery Imperative, dives into the details of eDiscovery - why delaying your eDiscovery capability can cripple your business, and exactly what may be hampering your project, including:

  • The eDiscovery Imperative
  • The Challenge of Managing and Finding Information
  • The Immediate Impact of eDiscovery on Organizations
  • The State of eDiscovery Today
  • eDiscovery Trends to Consider

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Getting Started w/eDiscovery

The third module of the eDiscovery: From Legal Imperatives to Technical Solutions" course, Module 3: Getting Started on eDiscovery, examines the business foundations of eDiscovery - who owns this problem? what are the skills required? - and  more, including:

  • Critical Elements of Good eDiscovery Programs
  • Aligning Roles and Responsibilities
  • Creating Retention Policies
  • Near-term vs. Long-term Issues and Challenges

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Understanding the Tech Landscape

The fourth module of the "eDiscovery: From Legal Imperatives to Technical Solutions" course, Module 4: Understanding the Complex Solutions Landscape, examines the technical foundations of eDiscovery - if you are handling your eDiscovery issues entirely manual whether with full-time staff or an army of temporary hires, here is an opportunity to cut your costs, risks and make eDiscovery a launching pad for overall information governance - and  more, including:

  • Understanding the Solution Landscape
  • Benefits Promised by eDiscovery Solutions
  • The Truth About eDiscovery Platforms
  • Positioning Solution Providers and Products
  • Final Thoughts and Considerations

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