filtering), can be particularly useful in
bankruptcy matters when trying to
reduce the large volumes of electronic
information. Moreover, leveraging
these technologies may assist with
maximizing creditor recoveries.
Outlining an ESI Plan
Condensed bankruptcy time frames
often put counsel in a reactionary
position. However, developing an
early and proactive ESI plan and
methodology can enable counsel to
develop a defensible strategy that meets
both the immediate and future needs
of an estate. Despite the challenges of
multiple “moving parts” in bankruptcy
matters, when outlining an ESI plan,
the following should be considered:
• The objectives and history that
led to bankruptcy. Counsel
should bring relevant e-discovery
consultants up to speed on the
events that led to the bankruptcy
filing, including information about
the possible sale of assets, claims
issues, anticipated litigation, and
allegations related to misconduct that
may require further investigation.
This background information
will aid in the development of an
overall strategy and ESI plan.
• Whether the business or assets
will be sold. If the business or assets
of an estate will be sold, a detailed
inventory should be created to
organize the dissolution of media
relevant to the issues in the case.
Inventory should be logged, tracked,
properly preserved, and then wiped
prior to being sold or recycled.
• Internal resources to maximize
efficiency and leverage institutional
knowledge. Internal resources can
be the key to preserving necessary
data in a matter. For example, IT
personnel can provide insight into
an organization’s operations, data
infrastructure configuration (e.g.,
data map), data retention policies,
and disaster recovery plans. They
might be able to locate back-up tapes
out of rotation or turn off auto-delete
functions to help preserve data.
• Locations of potentially relevant
data. The universe of data to be
considered in a bankruptcy matter
could include both structured
(databases) and unstructured data
(loose files and email data). The
location of potentially relevant
data from various sources
and storage devices should
be identified early.
• An effective e-discovery
workflow and strategy.
Time and budgetary
constraints are major
early in a matter.
As recommended in
Principle 4 of the interim
report, counsel are advised to
confer with opposing counsel on
the designed approach and reach
an agreement to minimize costs.
Proactive plans can help ensure that
potentially relevant ESI that otherwise