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Best practices for e-discovery

ediscoveryBusinesses involved in civil litigation or government investigations face a difficult task when it comes to e-discovery, the period during litigation when the two opposing parties are required to provide each other with information and other evidence related to the case. According to Rule 26 (“Duty to Disclose”) of the U.S. Federal Rule of Civil Procedure, parties are required to provide opposing counsel with electronically stored information (ESI) , including Word documents, spreadsheets, email and audio and visual records. The data is subject to local rules and is often reviewed for privilege and relevancy prior to being handed over. Digging through thousands of electronic records and data, however, can be frustrating, expensive and complex, especially if legal counsel lacks knowledge and experience handling the process. Furthermore, complying with e-discovery requests can become especially time-consuming, due to the large volume of information created and stored on network drives and personal computers.

In order to navigate through e-discovery effectively, companies must be proactive in the management of information and records, and make sure all e-discovery requests are handled by professionals who understand all compliance regulations. Records management professionals should partner with legal teams and IT staff to establish a records management program and educate employees on the proper documentation, storage and protection of all electronic information and communication. It’s also important that records which are no longer needed be destroyed in a systemic way and property documented.

Many businesses now rely on e-discovery applications and document review platforms that use digital forensic procedures to extract evidence for analyzation. In addition, following these these steps can help to ensure the e-discovery phase of litigation runs as smooth as possible.

In some cases, insurers writing D&O coverage for public companies now offer E-discovery cost reimbursement for securities claims in their policies, subject to a modest sublimit and without any self-insured retention. Contact your WGA representative to learn more or about these types of reimbursement and other issues pertaining to e-discovery.

About the Author

Marcus Janus is a Vice President in William Gallagher Associates (WGA) Executive Risk Practice. He specializes in assisting organizations and their executives with protection and advocacy for their exposures to Directors’ & Officers’ Liability, Employment Practices Liability, Fiduciary Liability, Professional Liability, Crime, and Kidnap & Ransom.

617.646.0258 | MJanus@wgains.com | Connect with Marucs on LinkedIn |

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