ECRM – from a litigation view is an important element in helping an organization reduce their risk during discovery. This risk reduction comes from three areas: First is knowing what information the organization has and where that information is held, thus allowing timely response to discovery requests. Second are proper preservation policies and procedures that will protect information from being accidental altered or destroyed resulting in potential sanctions or fines. Finally, by properly destroying items as part of normal business activity will reduce the overall quantity of documents requiring attorney review during a matter resulting in lower litigation costs.

Where is information held
The 2006 amendments to the Federal Rules of Civil Procedure (FRCP) mandate in Rule 26(f) Conference of Parties; Planning for Discovery (a.k.a. “Meet & Confer”) that the parties must meet (at least 21 days before a scheduling order is due under Rule 16(b) which is defined as 120 days after the complaint is served) to agree on discovery timing, content, and formats. For a successful Rule 26(f) conference, counsel needs to have a full understanding of where relevant information is stored within an organization and the effort required to produce that information.

Preservation of information
Preservation of information potentially relevant to a matter is a critical factor for organizations. Duty to preserve attaches when litigation is “reasonably anticipated”. There is no specific rule as to reasonably anticipated however there is emerging case law and commentary. Interesting cases concerning preservation include Cache De Poudre Feed, LLC v. Land O’Lakes, Inc., 2007 U.S. Dist. LEXIS 15277 (D. Colo. Mar. 2, 2007) and Toussie v. County of Suffolk, 2007 U.S. Dist. LEXIS 93988 (E.D.N.Y. Dec. 21, 2007).

Proper information destruction
While the idea of destroying information may sound like an event that is not allowed by the courts, it is actually acknowledged as a proper business process as noted in FRCP Rule 37(e) (a.k.a. Safe Harbor Rule) which offers protection against sanctions for a party’s inability to produce information lost as a result of “routine, good-faith operations of an electronic information system”. A proper ECRM program that deletes information and records in accordance to a properly developed retention schedule is understood to be a reasonable business process.

The Supreme Court of the United States noted in Arthur Andersen v. U.S., 125 S.Ct. 2129, 2135 (U.S. May 31, 2005) "Document retention policies, which are created in part to keep certain information from getting into the hands of others, including the Government, are common in business . . . It is, of course, not wrongful for a manager to instruct his employees to comply with a valid document retention policy under ordinary circumstances.".

Of course, key to an organizations success in defending against sanctions due to document destruction is a properly implemented ECRM program containing a preservation policy with trained users and governance tools to ensure compliance.

For more information please see the Sedona Conference Guidelines http://www.thesedonaconference.org/ and The Electronic Discovery Reference Model http://www.edrm.net/.