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Avoid E-Discovery Litigation Surprises

Posted by: Rod Kurtz on May 14, 2009

E-discovery is a challenge that is faced by virtually every organization, regardless of size. In fact, almost as many small organizations were the target of a lawsuit within the last 12 months as large ones.

Unfortunately, e-discovery is a highly complex process that requires specialized knowledge that many smaller businesses simply do not have in-house. As a result, it is all too common for these businesses to do nothing and hope e-discovery passes them by. This is not a prudent strategy for an organization that could be overwhelmed by the consequences of mishandled litigation. Better to start developing an e-discovery response plan by focusing on the things that can be controlled first.

•Devise an internal plan to be prepared for the inevitable. Clearly identify key players and assign roles to each. Create simple, step-by-step checklists in advance of litigation. And, do a dress rehearsal to test your plan.

•Find a cost-effective means of reacting to the unexpected. Find out what types of data you have and where they’re located. Next look for a service provider now, as a sort of insurance policy, so that you can process data quickly if a legal matter crops up before you are completely prepared.

•Take proactive steps to lower downstream risk and cost. Reactionary actions can be one of the biggest cost drivers for e-discovery. Many organizations today are purchasing content archiving solutions to proactively consolidate all of their e-mail (the most common type of data in litigation today) in one place, for cheaper and more efficient access over time.

•Leverage new tools. Another important benefit of archiving technology is that many solutions also come with emerging technology that allows organizations to get a sense of what is contained within their data, and then determine a legal strategy, prior to any expensive legal review work.

•Apply best practices for data retention and legal holds. It is not a good idea to keep every piece of data the company has ever produced. Not only does the "keep everything approach" cost your organization significant amounts of money for storage, but it also creates the risk that older information will be viewed out-of-context in a future legal action.

•Remove burden on oversubscribed IT infrastructure and team. Smaller companies may not have the resources or expertise to make these plans a reality.

Remember that it is nearly impossible to solve e-discovery problems immediately, especially on a limited budget. So put a timeline to the first phase of your response plan—12 months is a reasonable period to plan and execute from a standing position. Then place unwavering attention on the items that will protect your organization the most, without unduly affecting your bottom line.

Bob Little
Chief Marketing Executive
Austin, Tex.

Reader Comments

Rodney Brundrett

May 14, 2009 5:50 PM

I wish I would have read this article 10 months ago. Unfortunately we discoverd the value of such a policy the hard way. When we rec'd a subpoena for our email, as well as other documents, it was a painful process to locate the items that remained, and even more painful the brow-beating we took for the one's we couldn't produce. Having such a policy in place would have saved us thousands of dollars not to mention the time invested in the process.

We now have an email archiving appliance (the Defender from Arcmail Technologies -, which ensures we will have not suffer that situation again. Attorney's seem to know all to well that many company's don't have such a policy in place and make quick work of winning their case since the documents cannot be recovered. Unfortunately the implication is that we destroyed them intentionally when in actuallity they were simply deleted as "old" email (sigh).
At any rate, this is sage advise from someone who learned it a little to late. Take Heed!

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