Dreading Going Through the E-Discovery Process? These Tips Can Help

November 6, 2013Articles NJCCA Focus

Let’s face it – most clients hate e-discovery. It can be expensive, intrusive, and downright annoying. However, it does not have to be. With the right attorney advocating for you, you can navigate the minefield of e-discovery during litigation with relative ease. Here are some tips to help you along the way:

1) Understand your own systems

Having an understanding of your computer, email and data retention systems before litigation commences will help you and your attorneys operate more efficiently (and thus, less expensively). It may seem intuitive, but many do not do this, instead leaving it to their outside counsel to correspond with their technical support staff in order to sort things out once litigation is underway.

2) Know (or find out) when your preservation duties arise

Generally, the duty to preserve relevant information arises once a party knows that litigation is reasonably anticipated. This does not mean that you need to sound the alarm bells at any whiff of a dispute. However, at some point, if a reasonable person would look at a situation and sense that litigation is forthcoming, it is a good idea to preserve. You should also know the scope of what you are preserving. You do not need to cripple your business by preserving every last document. However, you do need to be diligent to ensure that all sources of potentially relevant information are preserved, and it is critical to suspend any automatic deletion processes. The penalties for the failure to preserve vary but can be severe, so make sure you’re preserving appropriate data and documents.

3) Take action immediately once litigation is commenced (or threatened)

Early intervention is key. The quicker you mobilize, the quicker you can ensure that everything that should be preserved is preserved. Remember, just because you get everything ready expeditiously does not mean that it will be going out the door the next day. In addition, there are strategic advantages to mobilizing from an e-discovery standpoint. The more time that you and your attorneys have to go through your relevant data, the better you and they will be able to analyze the strengths – and weaknesses – of your case. Having this is always helpful if the goal is to obtain an early, cost-effective settlement to avoid the costs of further litigation (and full-blown e-discovery).

4) Make sure that you talk to everyone who might have relevant information

Again, diligence early can save headaches later. While you of course will circulate a company-wide litigation hold notice, you still want to make sure you are aware of the identities of everyone who is reasonably likely to have relevant information. Keeping up with those individuals will help to ensure that you and everyone understands that the duty to preserve is continuing and there will be no spoliation issues. Having this information will also help your attorneys plan for likely deponents.

5) Develop search terms that can more easily lead to relevant information

Yes, your attorneys can do this. But nobody knows the dispute underlying your case like you (or others in your company). And yes, there have been amazing technological advancements in the form of predictive coding programming. But using that software can be costly, and it is not perfect. Using search terms to identify relevant electronic documents may be the best way to go, and if that is the case, taking an active role in the development of those search terms can only help your attorneys operate more efficiently and effectively. They will be much more likely to be led to information that is relevant while weeding out everything else, which translates into less time needed for document review.

6) Don’t forget about social media

Social media is everywhere, and that means that it is now included in what is considered to be e-discovery. Hopefully your employees know better than to publish information relating to your business on their social media accounts. If they don’t, there is a chance that relevant information could be there, and those sites must be considered as possible sources for collection. Try and get ahead of the game by implementing – and enforcing – company policies regarding social media. Many people tend to forget that there is nothing requiring them to post every single one of their thoughts to Twitter or Facebook. You should do everything you can to ensure that, to the extent that those thoughts pertain to your business, this doesn’t happen.

7) Be careful about what you put in emails

This goes for all written correspondence, but especially emails. Think of it this way – when you click the send button, you are making a commitment that you are comfortable with the information in that correspondence going in front of a judge or jury as evidence. If that makes you uncomfortable, don’t send the email. Talk about something on the phone or in person instead. Why raise this now? Two reasons: (1) these emails will come out during the e-discovery process and (2) your preservation and production obligations are almost always continuing, so it is important that you and your employees be on a heightened state of alert as to emails discussing the issues of your case. If not privileged, any commentary on the dispute may need to be produced.

8) Seek advice from your attorneys – we do this all the time

The e-discovery process can be challenging – both for you and your attorneys. Of course, this does not mean that you will be removed or isolated from the process. To the contrary, it is important that you partner and collaborate with your attorneys to facilitate the collection and review process. After all, this is your organization’s sensitive information at stake. You absolutely need to know what is being disclosed, when, and under what conditions and/or confidentiality protections.

Using these tips won’t make you fall in love with the e-discovery process, but it might make it a little less painful (and less expensive).

As published in the NJ Corporate Counsel Association Newsletter.