K&F ESI Sentinel

As described in Zubulake v UBS Warburg, LLC, 229 F.R.D. 422, SDNY (2004), parties have three obligations at the outset of litigation or whenever litigation is reasonably anticipated.

•	Counsel must issue a written litigation hold.
•	Counsel must communicate directly with key players in the litigation regarding their preservation duties.
•	Counsel should instruct all employees to produce electronic versions of their relevant active files as well as ensure that all relevant backup media are preserved and secured in a safe place.  In addition, counsel must take affirmative steps to monitor compliance so that all sources of discoverable information are identified and searched.

Although seemingly straightforward, the reality of properly executing a litigation hold is considerably more complex. Numerous pitfalls must be successfully navigated such as the following.

•	How capable is counsel in learning the client's information systems and determining that all sources of discoverable information are identified and searched?
•	How knowledgeable is counsel about the best tools and methods for effectively and economically preserving potentially relevant information after its existence has been identified?
•	Is it wise to rely on the client's information technology personnel when they are not trained or experienced with the intricacies of litigation in general or litigation holds and evidence preservation in particular?

K&Fs ESI Sentinel provides both client and counsel with all of these important capabilities. K&Fs expertise in forensic technology and ESI issues enables it to provide the technical skill necessary to ensure that litigation holds are properly designed and executed as well as discuss with both counsel and client personnel in their respective languages the requirements and accomplishments of the process.

For those organizations that are routinely involved in litigation and would like to make the implementation of litigation holds equally routine, K&F's Sentinel Survey is the first step in a systems engineering approach to the design, development and implementation of strategies, systems, policies and procedures for:

• Enterprise wide ESI retention and destruction efforts,
• Litigation holds,
• Preservation of ESI, and
• Storage of ESI for litigation purposes.

The initial Sentinel Survey will identify and develop functional requirements by:

• Reviewing information systems and identifying the potential sources of ESI
• Reviewing record retention, disaster recovery, and litigation hold and production procedures relative to the potential sources of ESI identified
• Identifying the sources of ESI most likely to be relevant to the most likely kind of litigation prospect for your organization.

This phase will conclude with the identification of both weaknesses and inefficiencies in an organization's ESI handling procedures and make recommendations for correction. If approved by management, K&F's recommendations will become the functional baseline specification for use in subsequent phases.

In the second phase, if approved by management, K&F will continue with design synthesis and development of the design specification including identification of necessary upgrades and enhancements required to accomplish the functional specification and integration of the process within document retention and destruction policies.

In the third phase, if approved by management, K&F will use its design specification to implement its requirements with the necessary system upgrades, creation of formal policies and procedures or enhancement to existing polices and procedures and conduct staff training.