As a records manager, you’re responsible for keeping your organization prepared for eDiscovery, the process of collecting and securing electronic documents for use in legal proceedings or government investigations. This may include identifying relevant records across multiple systems, ensuring metadata integrity, applying legal holds to prevent accidental deletion, coordinating with IT to retrieve archived data, and maintaining a defensible chain of custody for all documents. To avoid potential future fines and penalties, you must have a sound eDiscovery framework in place.
Managing eDiscovery may sound complicated, but it doesn’t have to be. By using a simple “stoplight” approach, you can regulate the flow of information to ensure compliance, defensibility, and efficiency at all times—just as a stoplight ensures orderly traffic flow.
Keep reading to learn best practices for setting up your stoplight and keeping it in working order.
The green light represents following your regular records retention procedures, in which all data is created, stored, and disposed of in accordance with your policies. At this stage, you aren’t aware of any legal actions on the horizon—but you’re doing everything you can to prepare your organization for them, just in case. To do that, follow these “green light” best practices:
There’s nothing more frustrating than discovering a record during litigation that you thought had already been destroyed. To avoid this situation and maintain visibility, keep all your data in centralized, accessible systems, and try to limit the unofficial copies people make for convenience.
Creating comprehensive data maps is one of the best ways to ensure visibility. Your maps should document all of the organization’s data sources, including email systems, cloud platforms, legacy systems, and collaboration tools like Slack and Microsoft Teams. Conduct regular audits to keep your maps up to date.
Additionally, make sure your maps include metadata—the data within the data that includes information about its authenticity, usage, and rights. Metadata is critical to the eDiscovery process.
Fulfilling legal requirements will be infinitely easier later on if you proactively integrate eDiscovery software with your current systems. That way, you’ll have everything in place to provide what’s needed without worrying about implementing new technology under pressure.
Remember, the legal hold and litigation processes may involve actions from employees and stakeholders who don’t always have records management top of mind. To prepare internal stakeholders, monitor for events leading to litigation, such as employee disputes or regulatory investigations, and educate employees on best practices by creating easy-to-understand guides for eDiscovery and legal holds. Schedule periodic training sessions to remind employees what to do and keep them informed when your processes change.
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The yellow light signals that something is changing—a potential investigation or litigation action is triggering the need for caution. When that happens, you need to slow or pause your normal data deletion and retention practices to make sure you preserve potentially relevant records.
At this stage, you should identify high-priority data sources and make sure their metadata is intact. To provide transparency, document any exceptions you make to standard retention procedures.
Be sure to issue legal hold notifications to employees who own documents relevant to the potential case, specifying what data needs to be preserved and providing clear instructions for doing so. Use tracking to create a record of acknowledgment and compliance, and collaborate with legal and IT teams to ensure your procedures are defensible. You should also explain your records and metadata classification systems to the legal team to expedite their document review when the time comes.
The yellow light period is also a good time to educate (or reeducate) employees about their role in litigation procedures, including recognizing and preserving relevant data.
The red light indicates litigation has begun. “Stop and preserve” should be your mantra now. Here are some best practices to follow:
The key during this stage is to avoid any action that may complicate the litigation process. Keep focus on preservation, and you’ll be back “in the green” soon enough!
At all stages, make sure to steer clear of these legal pitfalls:
By serving as data “traffic controllers,” record managers ensure that the organization stays compliant and efficient, avoiding disruptions and risks as it navigates the eDiscovery process. By maintaining sound and transparent information management processes, implementing eDiscovery protocols ahead of litigation, training employees, and working closely with your IT and legal teams, you will make the eDiscovery experience as smooth and stress-free as possible for everyone, earning respect and gratitude for minimizing costs and keeping the organization safe.
To make your role easier, consider investing in specialized tools, such as Virgo™, the preferred solution for information retention-policy management. Virgo helps determine what records need to be kept and which can be destroyed in accordance with your retention and privacy policies, active legal holds, and applicable regulatory requirements. Request a call with us to learn more about how Virgo can support a compliant program – even during the legal hold process.
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