Game Change — The Justice Department Gets More Aggressive on eDiscovery Guidelines
October 22, 2012 10:05 am

By Todd Marlin

Recent experience with the U.S. Department of Justice suggests the agency is taking its new recommendations for electronically stored information (ESI) in federal criminal cases very seriously.

It is clear there’s been a major shift in expectations concerning the use of technology in the U.S. legal system, and corporate America needs to approach litigation and regulatory inquiries involving the DOJ with a new mindset that recognizes and anticipates this shift.

Let me step back for a moment and explain the guidelines. Published in February, they are intended to reduce the number of costly and time-consuming motions concerning discovery disputes. And one of the guiding principles put out by the DOJ for working more efficiently is to include experts with “technical knowledge and experience” in ESI on your discovery teams.

Why is the DOJ emphasizing technological knowledge? Because so much of the negotiation over discovery production now involves matters of electronic protocol, formats, platforms and software.

Going forward, the DOJ is now demanding visibility into how you will gather information, how you will conduct searches and how you will produce digital data. Moreover, the government has to approve your processes. The DOJ expects you to come to the table and negotiate these matters at a very detailed level.

The “meet and confer” process, where civil litigants get together to hash out discovery protocols (often informally), isn’t going to cut it in a federal criminal matter.

Recently, I was on a panel at the 2012 conference of the Association of Certified Financial Crime Specialists. Reinforcing the recommendations I’ve just described, a fellow panelist and DOJ staffer who helped develop this protocol told me it’s being widely disseminated throughout U.S. Attorney offices and they are working on plans to increase adoption.

With these changes, it will be extremely important for companies to engage subject matter professionals early on to assist counsel in microscopically understanding the eDiscovery process they intend to use in response to government requests. Navigating this knowledge gap represents a big challenge for attorneys.

The views expressed herein are those of the author and do not necessarily reflect the views of Ernst & Young.

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