3 eDiscovery Challenges in the Food Industry and How to Combat Them

Preparation is key to overcoming the eDiscovery challenges facing the food and beverage industry. With the right team and a customized, detailed eDiscovery plan in place, you can ensure eDiscovery is handled quickly, correctly and securely — every time.

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Barry SchwartzBarry Schwartz

Food manufacturers face regular litigation, often related to things like personal injury/product liability, instances of salmonella and E. coli, unknown ingredients and labeling issues. With litigation comes eDiscovery — and in today’s increasingly digital world, the need to present relevant data in legal matters has never been greater.

The eDiscovery process involves finding, collecting and sorting through multiple gigabytes or even terabytes of electronically stored information (ESI) from a number of sources to find the most relevant files for the legal matter. It also typically requires attorney review and analysis, as well as producing files as needed for arbitration, regulatory matters, settlement discussions and litigation. For the food industry, the eDiscovery process can come with unique challenges, such as the frequency of claims, the large volume of data and the need to meet regulatory requirements.

Let’s take a closer look at these challenges facing the food industry and how to combat them:

1. Frequent litigation

Last year, The Seattle Times reported that plaintiff lawyers had filed more than 300 lawsuits seeking class-action status in the past three years, all involving allegations of misrepresentations on food labels. Following increased attention to product labeling, advertising, genetically modified organisms (GMOs) and consumer fraud, the food and beverage industry is a top target for class actions and individual lawsuits, according to Perkins Coie’s Food Litigation 2018 Year in Review report. Under this increased scrutiny, the industry is likely to continue seeing a growth in the number of claims. For companies without a proper process for handling eDiscovery, frequent litigation becomes not only a money sink, but also a time sink.

The solution: There’s no reason to recreate the wheel every time litigation arises. Instead, eDiscovery should be a standard business procedure that is tailored to your company’s requirements and expectations. Create a plan that outlines your company’s policies, procedures and best practices for each part of the discovery process, identify the company employees who will coordinate all activities internally, and ideally, select a centralized vendor to uniformly handle all external eDiscovery needs. With a clear and repeatable plan in hand, your eDiscovery team can follow the same steps each time they go through the process, allowing them to get the job done efficiently and effectively. This consistency will save your company precious time and money and ensure defensibility.

2. Large volume of data

When considering the number of different technologies we each use every day — email, mobile devices, computers, servers, cloud-based repositories, social media platforms and more — it’s easy to see that the amount of data involved in any case can quickly add up. To review this data in one comprehensive platform, especially across matters, requires a custom solution that addresses any unique needs of your organization and combines the ability to collect files, sort through them, archive them as needed and ready them for attorney review and advanced analytics. In addition to the right technology, this requires a team of experienced people and advanced planning.

The solution: The first step in dealing with your data is to understand what data you have, where it is stored and who has access to it. These questions should be addressed through the use of a custodian questionnaire (“CQ”), which can be handled easily through some eDiscovery platforms. CQs can be used in place of interviews or to supplement them.  With the knowledge gained from a well thought out CQ, you can determine where any potentially relevant files reside, the best ways to handle that data and gain insight into the circumstances of the case, which will help with case strategy and management.

Once you have a grasp on how to handle your data, work with your eDiscovery team to determine the best platform, or combination of tools and platforms, for preserving, collecting, processing and reviewing your data. Ideally, the solution will be tailored to your needs and will involve one platform to help manage legal holds and collect and process data, and another platform that attorneys can use to review potentially relevant documents. Make sure your review platform allows for plug-ins, which can provide additional functionality, such as deep analysis, clear visualizations, technology assisted review analytics and robust redaction capability.

3. Regulatory requirements

Food manufacturers must meet a host of requirements, including extensive record keeping demonstrating the implementation of food safety plans and Hazard Analysis and Critical Control Points (HACCP) plans to documenting the monitoring of critical control points, critical limits and verification activities. Additional documentation is mandated when plans are updated and new requirements necessitate additional policies. Retention and regulation requirements must also be followed for version history of most such documents.

The solution: It’s crucial to establish a policy that clearly outlines what data to keep, where to store it and how long to keep it, as well as what data to delete, when to delete it and how to ensure it’s deleted defensibly. A data management policy should be implemented and audited regularly so that it remains justifiable if questioned by regulators or in litigation. Keep in mind that companies have an obligation to retain any data under legal hold as well as any data that may be subject to other retention rules, so be sure to coordinate your data retention and defensible deletion policies.

Preparation is key to overcoming the eDiscovery challenges facing the food and beverage industry. With the right team and a customized, detailed eDiscovery plan in place, you can ensure eDiscovery is handled quickly, correctly and securely — every time.

Barry Schwartz, Esq., CEDS is SVP of Advisory Services at BIA, a leading national eDiscovery and digital forensics company. Barry Schwartz is highly proficient in discovery and document review matters and holds more than 35 years of legal and business consulting management experience. He oversees BIA’s advisory division and is primarily responsible for providing consulting and advisory services to BIA’s clients. Barry is able to provide experienced, sound insight in multiple areas, including information management, litigation & discovery, document retention and management, regulatory compliance and IT security.