Managing Litigation Risk Starts with IT

When you don’t know where you are going, any road will get you there, right? Well, what if you don’t know where you are? How would you know how far you have to travel to get to your destination?

With regards to electronic discovery, decision-making is slowly shifting out of the control of law firms and into hands of the corporate legal departments. And within the corporations, there is more collaboration being initiated between the legal, IT/IS and records management groups as they try and tackle the ever growing problem of managing discovery requests.

There is also shift in corporate litigants saying, “We don’t need to worry about assessing our readiness because we don’t deal with e-discovery that often” to “We haven’t had that major case yet, but we can see it coming up in the horizon and we need to plan for it now.”

With this growing understanding comes growing anxiety. Often companies simply don’t know how to start the process.

What companies are really seeking are well-documented discovery response plans detailing all the steps that should be followed when they are compelled to produce electronically stored information (ESI). What, then, both IT and the general counsel need is a playbook to help guide their internal and external teams on the step-by-step instructions for carrying out each of the necessary tasks.

For the most part, there are three major risks connected to ESI and electronic discovery that companies must be prepared to address:

  • Spoliation or deletion of potentially relevant ESI;
  • Inability or failure to comply with all of the requirements of a discovery order; and
  • Non-compliance with a governmental investigation, such as those related to Sarbanes-Oxley or HIPAA.
  • There are also many questions that must be answered when it comes to producing ESI.

  • Which custodians are relevant to the matter;
  • What ESI is potentially relevant to the matter;
  • What steps have been taken to preserve ESI;
  • What tools will be used to collect the ESI; and
  • What keywords or timeframes can we apply to limit the scope of discovery?
  • Before attempting to answer any of these questions, it’s important to first determine what are the current practices around electronic discovery, where gaps may exist and what are the risks associated with those process gaps. In order to do this, a baseline needs to be established.

    This baseline can help both the legal and IT teams understand what areas can remain unchanged and where immediate and long-term improvements need to be made.

    The best starting point to creating a baseline is to understand the current people, process and technologies used for litigation and discovery response. For example, IT folks in a major chemical company felt they already had excellent control of their electronic information. But, when they completed an assessment of their collection processes it was determined that their current processes were not documented.

    In addition, there were three major problems identified in their current collection protocols that were not in compliance with legal standards that could cost them dearly if every questioned in court.

    All companies have an idea of where they want to be, but how to get there can only be answered once a baseline assessment as been conducted that covers all of the major electronic discovery processes, including collection, preservation, records management, processing, review and production.

    The first step to establishing a “readiness” baseline is to identify the organization’s:

  • Litigation profile;
  • Complexity of e-discovery and IT infrastructure;
  • Processes already in place for responding to electronic discovery requests;
  • Documentation of these process; and
  • Anticipated volume of litigation or investigation that may involve discovery.
  • The best way to accurately gain this information is through a formal assessment process. Having a baseline from which to measure and improve provides the starting point and establishes the foundation for effectively lowering electronic discovery costs, risks and time.

    As an engagement manager in Fios’ Discovery Management Services group, Vikas Pall is directly responsible for helping clients create repeatable and measurable business processes for managing electronic discovery.