Nine Small Projects to Become More Litigation Ready
Little projects can have a surprisingly high return on effort.
October 03, 2010 at 08:00 PM
5 minute read
The original version of this story was published on Law.com
Litigation readiness projects generally come in two sizes: “Big” and “little.” Big litigation readiness projects include updating retention and deletion policies, creating ESI Maps, implementing e-mail archiving or conducting enterprise-wide change management and employee training. These projects can have a tremendously positive impact on discovery costs, especially for companies with high litigation profiles. Nevertheless, not all companies have the appetite for these larger projects, either because they have a lower litigation profile, or it is difficult to convince senior management to invest today for cost savings down the road.
On the other hand, little litigation readiness projects also can provide a surprisingly large return on effort. By their very nature, little projects also take less time and fewer resources.
Here are some of my favorite small projects:
- Create a Process for Documenting Incoming Litigation. Could you put your hands, right now, on a list of all current pending litigation at your company? If not, consider creating a process to document all legal matters as soon as the company receives notice of them. The format could range from simple (spreadsheet) to more involved (Access database, SharePoint site or case management software), but should include all relevant information about the matter.
- Develop a Coordinated Legal Hold Process with IT. Like most companies, you probably have a Legal Hold notice that you send out to custodians upon notice or receipt of a legal matter. Do you also coordinate with IT to ensure that data is preserved within specific repositories? A well-developed Legal Hold process is a collaboration between both Legal and IT, to ensure that all relevant electronically stored information is preserved, whether under the control of an individual employee or IT steward.
- Remind and Refresh. Simply sending out the Legal Hold notice is not sufficient these days to satisfy your preservation obligations. Custodians should be reminded to acknowledge and comply with the hold notice, with the process escalated to a supervisor should the employee fail in his or her compliance. A “refresh” of the legal hold may also be necessary if the scope of the discovery request changes, requiring additional data to be preserved.
- Create a Discovery Response Team. Having a “team” dedicated to handling e-discovery at your company can help to ensure consistency of response. This group should be cross-functional in nature, with representatives of Legal, IT, Records Management, and Compliance included in the mix. An e-discovery team is responsible for process governance and oversight, as well as facilitating knowledge transfer and consistency across the entire enterprise.
- Train a 30(b)(6)Witness. If opposing counsel served a deposition notice for your “individual most knowledgeable about the company's information technology systems,” would you know who to designate? Identifying one (or more, depending on the size of your company) IT employee with broad knowledge of the company's information technology allows you to be prepared once that notice arrives. More importantly, make sure that witness is properly trained on deposition etiquette, so that the information provided in testimony is concise and relevant.
- Launch an employee training program. Although most companies have some sort of legal hold process in place, their employees may not completely understand all of their obligations under a hold notice. Develop a training program that educates all employees on their preservation obligations, and require them to take the training at least once a year (or more often, if they receive a high number of legal holds).
- Develop a Legal Hold Release Process. While companies are good about holding electronically stored information, most of them are pretty bad about releasing those holds. As a result, custodians continue to preserve data long after the lawsuit is dismissed and even after its retention periods have expired. Communicating a release of the legal hold to your employees will reduce the risk that the data is kept longer than necessary, and potentially reduce the cost of storing data that is no longer required to be kept.
- Clean Out Older, Non-relevant Backup Tapes. Best practice dictates that backup tapes should be used for business continuity purposes, and not as archive sources for electronic discovery. Take all of those old backup tapes that are sitting in storage, index them and extract all relevant data to a repository, and then either retire those tapes or put them back into the regular rotation. You will no longer have to consider the backup tape as a potential source of electronically stored information, which can potentially result in savings from not having to restore tapes for litigation or subpoena response.
- Educate Your Outside Counsel. Does your outside counsel have a good understanding of your company's information technology systems? If they don't, how can you expect them to negotiate a fair scope of discovery at a Meet and Confer or other discovery conference? Provide your outside counsel with the background on your IT systems – where relevant information can be found, and how much information lives there – and they will be better prepared to represent your interests against opposing counsel, the court, or governmental agency.
These projects take between days and weeks to complete. The tendency in litigation readiness is to start big, but often it is better to start little.
Read Mark Diamond's previous column. Read Mark Diamond's next column.
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