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Could the BP Oil Spill Lead to an e-Discovery Disaster?

As oil from the BP spill continues to spread into the Gulf waters, the eDiscovery scenario for the company continues to expand and worsen as well.  BP has already agreed to take full responsibility for the fallout of this catastrophe, which is one of the most epic environmental debacles…ever.

On May 19, the Associated Press reported in an article that “an attorney is asking a federal judicial panel to quickly consolidate more than 100 lawsuits filed against BP and other companies responsible for the massive Gulf oil spill.  Louisiana lawyer Daniel Becnel says legal chaos could break out in five Gulf Coast states if the lawsuits aren't combined. Becnel has asked the U.S. Judicial Panel on Multidistrict Litigation in Washington to quickly reconsider whether to order the cases consolidated.  The panel has indicated it will not decide until July.”

So as BP braces itself for what will no doubt be a veritable tidal wave of lawsuits in the near future, what kinds of steps will they need to take from an eDiscovery and litigation readiness standpoint to make the processes as painless as possible, and to prevent an eDiscovery disaster of epic proportions?

Attorney Tom O’Connor, eDiscovery expert and founder and director of the New Orleans-based Gulf Coast Legal Technology Center is well familiar with grappling with post-disaster legal issues.  Several years ago, he helped Louisiana and Mississippi lawyers get back on their collective feet from a technology and eDiscovery perspective after Hurricane Katrina.  He became so dedicated to this part of the country that he eventually relocated to New Orleans from his previous base of Seattle.

When asked to comment on what BP will need to be preparing for right now from an eDiscovery standpoint, O’Connor says, “BP has already been named in several lawsuits and in one of those suits filed here in New Orleans, the Plaintiffs have already filed a request for production.  In another, Judge Kurt D. Engelhardt issued a 20-page protective order on May 5th which sets out the defendants’ obligation to preserve documents.”

O’Connor notes that BP will need to focus on data preservation/collection/backup tape remediation for “massive amounts of data, perhaps more than any other case in US litigation history.”  Apparently, it’s going to get much, much worse for BP before it gets better – quite like the oil spill itself.

Ever since documents have been stored digitally, electronic discovery has figured into cases.  However, many organizations still find themselves stumbling when it comes to legal hold obligations, guarding against spoliation, and electronic redaction.  How can BP avoid becoming another cautionary tale of a Fortune 500 company blundering through its eDiscovery responsibilities? 

eDiscovery consulting firm Jones Dykstra’s Seth Eichenholtz suggests, “BP should consider creating a specific ‘task force’ incorporating key people from its General Counsel’s office, IT staff, and Records group to assess existing corporate policies for business records, general records retention, and current legal hold parameters.  A matter of this size and complexity is very atypical, so standard responses to litigation or regulatory inquests may not fit.  BP’s in-house and outside counsel need to decide how detailed and deep their legal hold needs to be.”

Eichenholtz continues, “As it pertains to preservation/collection/tape remediation – from a very high level there must be a cost/benefit analysis performed.  A company the size and scope of BP likely has a vast backup tape system.  Freezing and taking a large number of tapes out of rotation in an attempt to preserve could be exorbitantly expensive, but that risk must be weighed against the very real threat of spoliation.  Until BP has a strong idea of what litigation and regulatory inquests they will be facing in the near future, they will most likely preserve their data very broadly and attempt to keep narrowing the volume, type and category of data to reduce their eventual costs of processing and reviewing.”

Jim McGann, Vice President of Information Discovery at Index Engines, a provider of eDiscovery technology and backup tape remediation, also notes the importance of synchronizing overall policies and procedures, mentioning that it’s crucial to implement a process that is “capable of gathering the data from all locations – online network storage, e-mail servers, desktops and backup tapes – in a streamlined approach.”

McGann says his hope would be that BP is proactively managing its current and historical data, or at the very least that this situation will encourage them to, so that an eDiscovery disaster does not compound the natural one in which they are already embroiled.  He explains, “If a data management process is already in place, it can be a quick and easy process to retrieve data from an archive.  Index Engines’ technology allows corporations to both effectively apply retention policies to data produced today, as well as proactively sort through historical data to find what’s relevant, archive it, and remediate the rest.”

Being prepared from an eDiscovery standpoint is not the only way that organizations need to prepare themselves for impending litigation.  Document readiness and redaction are also important to keep in mind when preparing for litigation volume of this magnitude.

Christine Musil, Director of Marketing for Informative Graphics Corp., a provider of viewing, collaboration and redaction technology, emphasizes the importance of document readiness, noting the specific importance of electronic redaction specifically when it comes to enormous matters like the BP Oil situation.

Musil notes, “Because of the high profile nature of this case and potential long-term economic and environmental impact of the spill, the media and special interest groups will be demanding documents and transcripts and examining the files with a fine-toothed comb.  BP needs to communicate early and often with subcontractors, opposing counsel and even the court on particular areas of sensitivity.  The importance of proper electronic redaction using a tool like Redact-It can prevent privacy and privileged data from getting inadvertently exposed.”

She also points out that one of the most important ways a company can be litigation-ready is to minimize the distribution of documents as a whole.  According to Musil, “Offering secure access to documents through a secure viewer like Brava! that is integrated with a document management system can ensure that rogue copies of documents aren’t floating around and makes impeding legal hold much easier.”

According to Barry Murphy, co-founder and editor at eDiscoveryJournal, BP offers a good lesson to any geographically dispersed, large organization.  “What this incident proves is that proactive information governance strategies and infrastructure will be critical for cost-effective eDiscovery.  BP faces the challenge of preserving potentially relevant information across various sources and across country lines.  In addition, that information may live in remote places like oil rigs.  What’s reasonable for BP to preserve is still up for debate.  But, after this incident, any organization that is ignorant of the need to proactively address these challenges will be hard-pressed to win that argument.”

BP is still trying to contain the oil from the spill and to minimize its impact on the external environment – the ocean, its shores and the marine life that lives in and around the Gulf.  However, the company must also focus on its internal environment from a data perspective to ensure proper stewardship of eDiscovery and to undertake the best possible litigation-preparedness measures.  Fortunately, appropriate technology is available to do legal holds, preservation, collection and redaction properly.  Hopefully, BP will leverage existing software tools and expert consulting help, when needed, so they can be proactive about reducing their potential eDiscovery woes.  Perhaps if they do that, they don’t have another disaster on their hands. 

Christy Burke is President of Burke & Company LLC, a legal technology PR firm based in New York City which she founded in 2004. Burke & Company has worked with 25+ clients (amongst which are Index Engines and Informative Graphics) in the legal tech industry, spread across the U.S., Canada and Europe.
 

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