10 Best Practices For eDiscovery In Government Investigations

The arrival of a government subpoena on the doorstep of your corporate headquarters rarely rates as a welcome development. Yet, the fallout is far worse without a plan in place to manage document discovery throughout the ensuing government investigation.

"The Department of Justice is very serious about prosecuting cases where there is destruction of evidence," said John Haried, Criminal eDiscovery Coordinator and eDiscovery working group co-chair for the Executive Office of United States Attorneys in the DOJ. Failure to adhere to eDiscovery legal requirements and responsibilities while a government investigation is underway can trigger a wide range of sanctions, including spoliation of evidence and adverse inferences drawn therefrom.

Based on experience providing eDiscovery management for responses to government investigations - involving data collections by Discovia on five continents and in 22 countries - we have assembled a list of 10 best practices for effective eDiscovery management during federal investigations.

1. Map the data landscape

   Government requests often can be extremely broad, necessitating informed negotiating strategies to limit the scope and ease the burden of eDiscovery. Before proposing subpoena modifications, consult your eDiscovery service provider. They may have thoughts as to whether a strategically narrowed scope of eDiscovery is both fair and feasible.

   Focusing on your proposed eDiscovery parameters, next ensure that you understand the underlying data landscape. Are your company's emails automatically archived? Do you use cloud servers or on-premises servers? What types of electronic communications platforms do your employees use? In order to effectively support eDiscovery efforts required to respond to a government subpoena, it is essential that all members of the team - in-house counsel, outside counsel and eDiscovery service providers - are on the same page with respect to where the data resides in the corporate IT landscape.

2. Establish collection goals

   Once everyone is clear on where the data can be found, it is time to identify specific goals and milestone deadlines for the anticipated data collection. Address all custodian and non-custodian sources to be collected and strategize as to how targeted your collection efforts will be. Taking these steps up front will enable your eDiscovery experts to suggest the most costeffective and defensible collections workflows for each data source.

   Also, be prepared for the reality that data...