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Facing Down Electronic Discovery

Posted by: Rod Kurtz on November 5, 2008

These days e-discovery is becoming a fact of life for most companies—even if they don’t know it yet. E-discovery refers to the identification, collection, preservation, and production of electronically stored information (ESI), such as e-mail, spreadsheets, instant messages, and even voicemail, for purposes including litigation or regulatory responses. Every company facing likely litigation will have to engage in e-discovery.

Most small businesses have little to no execution plan for litigation-readiness and e-discovery. Historically, companies facing litigation and e-discovery, overwhelmed by day-to-day business, have called outside counsel and waited nervously for a result.

But that was then, this is now. Dec. 1, 2006, was a watershed moment for e-discovery. On that day the Supreme Court amended the Federal Rules of Civil Procedure (FRCP) and changed the face of e-discovery and litigation preparedness. When faced with impending litigation, companies must now know where potentially relevant data is and have access to it. Even the likelihood of trial requires the preservation of relevant data, including e-mail. Initial disclosures of information are due in 90 days or less. Failure to do so properly can result in fines or summary judgments. You must be proactive, but for small businesses, the question is how.

Enter a wave of solutions designed to keep tabs on your e-discovery process while your attorneys do their due diligence. By selecting the right solution(s), small and medium-size companies get compliant without breaking the bank.

Items to consider when selecting an e-discovery solution:

1. Process matters. Define a defensible, repeatable e-discovery process to avoid legal challenges.
2. Don’t reinvent the wheel. Get a solution that allows work done for one matter to be leveraged again in future matters.
3. Collaboration counts. The solution has to work for you and your attorneys.
4. Look for software as a service solutionsto void capital and personnel expenses.

Check out online resources such as to gain a better understanding of the e-discovery landscape. Preparing for litigation and e-discovery is a fact of doing business, but litigation preparedness should not become your business.

Tom Thimot
San Francisco

Reader Comments

Maria Ganson

November 5, 2008 11:21 AM


As a trial lawyer representing major companies for many years, it is pleasing to see that the knowledge of these requirements (now federally mandated) are becoming more mainstream. It makes the lives of defense litigators like myself easier...thks!

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