Framework for Law Firm E-Discovery Committee and Tactical Data Management Committee©

A Capital Legal Solutions White Paper
Revised Summer, 2009

A prudent measure for any law firm specializing in litigation is to maintain a standing committee on electronic discovery and tactical data management. The challenge of managing discovery information, particularly electronically stored information, is great. The potential pitfalls are many, and the consequences of mismanaging such information can be ruinous for both the law firm and the client.

An E-Discovery and Tactical Data Management Committee enables the firm to create an internal knowledge base about the challenges posed by discovery information, and to educate litigation teams on the most appropriate responses to those challenges.

The committee’s functions are to:

Collect the e-discovery experiences and relevant written work product of attorneys throughout the firm and make them available in a central repository. Accordingly, the Committee becomes a vital network for advice to attorneys and clients, and a clearinghouse for information – legal memoranda, pleadings, orders, opinions, etc. – that may be useful to trial counsel facing e-discovery or retention issues.
Monitor outside information on developments in technology and the law of e-discovery. In support of these efforts the Committee should seek the aid of specialists in computer forensics, data recovery, data preservation, document production and document retention matters. The Committee may also turn for guidance to the best practices promulgated by The Sedona Conference Working Group on Electronic Discovery and Electronic Data Management and may become involved in that group’s activities.
Review judicial opinions, academic literature and trade publications to identify emerging trends, new rules and new technical developments that may affect the practice.
Conduct professional development programs for attorneys and professional support staff and conduct in-house CLE programs. The Committee may also establish an outside speakers bureau for clients and prospective clients.
Publicize developing connections between e-discovery and retention issues, and other significant developments such as Sarbanes-Oxley requirements, changes in regulatory agencies’ guidelines for production of e-documents (e.g., FTC second requests), new electronic communications privacy regulations, international law developments, newly enacted governmental mandates concerning preservation and retention of electronic records, etc.
Participate in the rule-making process and follow proposals before the Advisory Committee on the Federal Rules of Civil Procedure, the ABA and other regulatory and advisory groups.
Provide support for clients’ efforts to establish appropriate electronic record management protocols, and provide guidance in establishing systems for the comprehensive implementation and auditing of compliance with such protocols.
Aid in the establishment of client “E-Disaster-Avoidance Rapid Response” teams (SWAT teams), typically composed of the client’s corporate or in-house counsel, the client’s IT and other technical specialists, and specially designated representatives of the law firm.
Promote litigation team building, facilitating the formation of relationships between firm litigators, litigation support staff, and IT staff. The various players on the litigation team may have different agendas and may lobby for processes or software applications that may be inconsistent with the needs of other players. The Committee is well-positioned to mediate any disputes and ensure that decisions are based on what is best for the overall project, not for any single faction.
Promote the law firm’s contribution to the literature on the subjects of e-discovery and electronic records management.
Provide special recognition, perhaps through an award system, for outstanding accomplishments in its areas of focus.