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Feature Stories Best Practices for Preparing Your Company for Electronic Discovery—Advice for In-House Counsel from Leading Attorneys Few words evoke fear and anxiety in the minds of in-house counsel more than these: "electronic discovery." By now, there's no doubt you know what the term means. But what to do about it? It's likely that you aren't entirely satisfied with your company's level of preparedness for an electronic document request. Implementing a simple four-step plan will give you a significant strategic advantage when the issue arises. 1. Assemble Your Team Early involvement of all necessary parties is critical for effective electronic discovery response. This should include inside and outside expertise on both legal and technical issues. Just as you wouldn't think of defending a lawsuit without hiring outside counsel, you shouldn't try to manage electronic discovery without proper technical assistance. Your e-discovery team should include in-house counsel and outside counsel on the legal side, and internal IT staff and an electronic discovery service provider on the technical side. "Electronic discovery is a part of every case now," notes Adam Cohen, a partner in the New York Litigation department of Weil, Gotshal & Manges LLP, and co-author of a forthcoming treatise on electronic discovery. "The company's lawyers must oversee the process, but must work with the company's technical staff to understand the new landscape of discovery." Electronic discovery isn't going away, and in-house lawyers must act now to equip themselves with the expertise to guide the company through potentially rocky terrain. "The proportion of electronic documents in discovery has been increasing steadily in recent years, to the point where about 95 percent of the production in some cases now is email alone," adds Cohen. Whether facing a discovery request in litigation or a document request from the government in the course of a merger review or other investigation, arming the company with a cohesive team is critical. Jonathan Redgrave, a partner in the Washington, D.C. Litigation group of Jones Day, recommends that outside counsel schedule meetings with both the law department and the IT department even before a request is pending. "Outside counsel should assist in performing an initial scoping exercise to inventory the legal and technical issues likely to arise," advises Redgrave. "Internal IT resources should be leveraged to gather the data, but an outside vendor may be necessary when it comes time to process and review the documents." 2. Take Stock of Your Company's IT Systems "First, we have to make sure there is no ambiguity about the fact that electronic documents must be treated like all other documents in discovery," states Cohen. "If they are relevant, we need to figure out where to find them." Many companies initially fear the discovery of electronic information, forgetting that documentation helpful to the company's case may be found in computer files just as easily as harmful information. "Companies must determine the potential custodians and likely physical locations of beneficial documents," adds Redgrave. "That information must be identified and preserved to support the company's claims and defenses." In a merger investigation or other situation that requires a rapid turnaround, understanding the layout of the company's IT systems in advance is critical. "The techniques employed depend upon the merger strategy and how a company maintains its files," says Claudia Higgins, a partner in the Washington, D.C. Antitrust/Litigation department of Kaye Scholer LLP. "Some files are, I believe, best reviewed in native format—like intranet sites or data that must be manipulated, for example—while many other files, like email, are better when converted to another form for review." A quality electronic discovery service provider will not try to force the company into a "one size fits all" approach. Rather, they will provide guidance about the best methods for processing and reviewing electronic documents of different kinds. 3. Evaluate Your Document Retention Plan "One of the major points of advice I would give any company is to make certain that your company has in place an appropriate document retention policy," notes Higgins. "It's important to deal with document retention issues earlier rather than later," agrees Cohen. "You have to think about what makes sense for your business, and be sure this is the main driver for your policy." "Courts don't expect perfection," explains Redgrave, "but you need to have a defensible plan in place." In some companies, the document retention plan is to have no formalized plan at all. No matter what decision has been made by the company, the e-discovery team must be prepared to deal with the implications. When a document request is pending or imminent, you must consider the company's data storage, retention, and destruction practices, and immediately determine whether the usual procedures must be interrupted to avoid spoliation claims. 4. Prepare an Electronic Discovery Response Plan Once the company's IT systems and document retention procedures are understood, it is wise to document the electronic discovery protocol you will follow in a given case. This plan should include an outline of document preservation measures, data-gathering procedures, and a project plan for electronic document review. You will be better positioned to request cost-shifting or other relief from undue burden and expense if you affirmatively present opposing counsel with a proposed plan for handling electronic data in discovery. Securing agreement about electronic discovery protocols early in the case is the best-case scenario. Unfortunately, discovery is contentious in many cases, and opposing counsel may be unwilling to agree to any proposed plan. If this situation arises, seek guidance from the court rather than waiting for a motion to compel. Courts look with favor on a party that is informed of its electronic discovery obligations and has taken necessary steps to educate everyone involved about issues that will be relevant to the case. The simple act of setting forth an electronic discovery plan and seeking approval from the court will make a significant difference in how the company is positioned, should discovery disputes arise. "I believe that no antitrust lawyer can effectively practice today without becoming proficient in working through the special issues raised by electronic documents," states Higgins. The same is true for litigators, Cohen adds: "Electronic discovery is not an afterthought or something that comes into play only when a special request is made. It must be part of your overall case strategy now." |
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