eDiscovery has been top of mind for organizations in multiple industries in the United States - spoliation, smoking guns, litigation, court fines and sanctions; eDiscovery costs, as well as the Federal Rules of Civil Procedure amendments which stipulate that organizations must have defensible policies and practices in place for the management of electronically-stored information. On top of this, many organizations face numerous compliance regulations that require certain documents and emails to be retained for a specific retention periods.

Energy organizations are far from exempt from eDiscovery issues. In fact, research from Fulbright & Jaworski LLP on litigation trends found that Energy was the only industry in which more than half of the companies surveyed had regulatory proceedings initiated or filed against them in the past year. To make it more meaningful, Energy companies are operating in turbulent times as it relates to pricing, costs, geopolitical risk, etc. and they frequently engage in aggressive and risky exploration/capital project investments.

So what to do? Well first, you can listen to a podcast we recorded that features Rebecca Ptaszynski, an associate in the Commercial Litigation Group at Vedder Price, as well as Stephen Ludlow, program manager, eDiscovery for Open Text, and Hugh Ritchie, program manager for manufacturing and energy at Open Text. They provide some great information to get energy companies thinking about eDiscovery.

In the podcast, Stephen talks about some key things energy organizations need to do to be prepared for eDiscovery requests. They're outlined below:

1. Conduct a thorough risk assessment on your litigation readiness. Review your policies and capabilities for both information disposition and for the capability of putting content on litigation hold. Assess your records environment - what you have in place, what you are lacking, and the risks and vulnerabilities found within your records management procedures. If you were faced with litigation tomorrow, determine what risks you would face and what potential problems you would have in producing the information that is requested. Determine how ready your company is from a policy perspective to be able to respond promptly to litigation.

2. Develop an internal team of eDiscovery specialists. This team of specialists will help to ensure you have the capability of being able to respond to eDiscovery from an IT perspective, and from a legal perspective. Specialists will work with the content being collected and put on preservation hold, and help you understand the content, search through the content and eventually make the content available for legal review. Having a specialist in house provides the capability to reduce the amount of content that is handed over for legal review. They also help to ensure that the searches and the collection of content are done defensibly should you be challenged.

3. Look at each case separately. Organizations need to look at every case separately to determine how they will respond internally from an eDiscovery perspective. A risk assessment should be conducted on every case and determine if your current procedures are relevant. Keeping it in-house makes sense, but there are some cases where it is still a good idea to get a specialist in to do the eDiscovery work.

4. Implement an Enterprise Content Management Strategy. An Enterprise Content Management (ECM) system, containing solid records management policies, helps energy organizations understand the content they have within their organization. It allows them to put disposition policies on their information to get the sheer amount of information growing in their organization under control. An ECM system also enables organizations to broadly implement litigation holds on content so that when they are subject to litigation, they have the capabilities to put the content on hold and ensure that content does not get disposed of inadvertently during the case or prior to the case.