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Practice Tips
Act Now: Prepare Clients Early for Electronic Discovery
By Michael J. Gray, Esq., Jones Day
In the minds of most company executives, the word "discovery" often equates with "danger." And, in light of several recent high-profile lawsuits, executives feel a particularly strong sense of apprehension related to opening the company's electronic filing cabinets to discovery. Handled correctly, however, effective electronic data management provides significant strategic and cost-effective advantages before litigation is at hand. The following preventive measures will assist you in preparing clients for inevitable electronic document requests:
- Do your homework. Outside counsel can make the mistake of providing advice to a client on electronic data management before understanding the client's unique circumstances. Before any meeting with a client on these issues, you should gather and review the document retention and destruction policies that the company maintains, determine whether any policies address electronic data management, and ask questions about the often unwritten practices on data management. Knowing how the company creates and stores information, both written and electronic, will position you to provide effective legal advice.
- Guide the client in preparing for a meeting with you. Identify both the head IT person as well as the "on the ground" IT person with the knowledge about how electronic documents are actually maintained, stored, and eliminated.
Give the company a checklist of things to bring to the discussion, including: copies of written and electronic document retention policies; list of backup procedures; list of email and network servers; map of data storage systems; and copy of any document preservation orders from any other litigation.
- Schedule the client meeting and define reasonable expectations. The first meeting should set the stage for your work together to prepare for electronic discovery, but should not attempt to address all the company's data management issues at one time. To ensure you make as much progress as possible at this first meeting, you should:
- Involve in-house lawyers who are familiar with the challenges the company faces with regard to litigation issues, regulatory and compliance issues, and other business needs.
- Involve IT personnel at both the executive and staff level. Those employees who actually administer the company's data management systems often have different views of the company's preparedness for electronic discovery than do members of IT management or even in-house lawyers. You are best positioned to help your client avoid potential spoliation claims when these issues are discussed in advance of litigation. You will be well-prepared to help the company understand and make any quick data management changes or exceptions in the face of pending litigation.
Once you have set the stage for a continuing dialogue about electronic data management, your client will look to you as a trusted advisor when an electronic document request is issued.
- Assist in organizing the information gathered. In efforts to make it easier for the client to assess the status of electronic data management, create a pre-litigation checklist to be used when a lawsuit is filed, or written discovery requests are received, and follow-up with an electronic discovery action plan. Remember that finding electronically-stored documents both assists in responding to discovery and enables a company to access helpful documents for its defense.
Outside counsel brings invaluable expertise to the table to better prepare the client for electronic discovery before an urgent situation, or in the worst case, destruction of documents, occurs.
Michael J. Gray is a Partner in the Labor & Employment practice group in the Chicago office of Jones Day.
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Law Technology News Award
Applied Discovery recognized as Product of the Year and Best Electronic Data Discovery System by the readers of Law Technology News... 
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Newsletter
 Applied Discovery offers free subscriptions to The E-Discovery Standard™, our quarterly electronic discovery newsletter.
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New ABA E-Discovery Resource on FRCP Amendments
The Discovery Revolution: E-Discovery Amendments to the Federal Rules of Civil Procedure, by Lewis and Roca LLP partner George L. Paul, Esq. and J.H. Cohn LLP director of IT security auditing Bruce H. Nearon, CPA. Order your copy from the ABA today...
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