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How can you and your company avoid the missteps of Arthur Andersen, Enron, and other corporate giants who are facing electronic discovery challenges without setting yourself up for unduly expensive discovery steps or interfering with computer operations needed for business? Here is a four-step process attorneys should undertake when responding to a data preservation request — or even the anticipation of a request. This process must be applied both to legacy data (data that has already been created) as well as future data. 1. Notify both the computer system users and the IT department quickly about the need to preserve data. 2. Follow up quickly to inventory and obtain information about what computer systems may be storing relevant data, and make reasonable determinations about what needs to be done to preserve it. If a preservation order has been imposed, you must act quickly to address any issues that may make it impractical or even impossible to follow. Teamwork between counsel, technology professionals and end users is crucial to effectively address the need to preserve evidence in a reasonable manner. 3. Take affirmative steps to reasonably protect data that needs to be preserved. Remember, computer systems are dynamic, meaning that both data and the environment of computer systems holding data are changing as time passes. When data is collected, monitor changes and evaluate what must be done to maintain the integrity of the data. 4. Fully document quality control measures. The computer processes and work flow procedures necessary for identifying relevant data and preserving it can become complex. Computer data is always subject to system malfunctions and human error. One must avoid inadvertently allowing the preservation process itself to lead to evidence destruction charges, so keep a record to show your diligence and attention to detail. Going forward, establish an archiving system (with the capacity to preserve information pursuant to any litigation needs) for e-mails that have business significance or regulatory retention requirements. The underlying problem is that e-mail systems are designed to hold data, but not to manage it. Consider installing automated systems that incorporate appropriate preservation guidelines into the day-to-day operation of your e-mail system. This can increase compliance with legal requirements, and help you avoid costly and potentially inadequate ad hoc preservation steps. Move quickly to preserve evidence when hit with litigation. The first few days can be critical. The facts relating to a lawsuit are often historical and can easily be lost without a well-reasoned, systematic process in place. Thomas Barnett and Kenneth Shear are vice presidents at Seattle’s Electronic Evidence Discovery Inc.

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