New England Biz Law Update
Electronic discovery has become a major component in the litigator’s tool bag. Subject to new court rules and intense court scrutiny, e-discovery is fraught with issues, problems and risks and is quite time-consuming and expensive.
As reported in New England In-House and in numerous others of late, the failure to preserve and produce e-discovery can result in consequences that are absolutely draconian. Examples of court sanctions include extraordinary monetary orders, shifting of burdens of proof, elimination of defenses, adverse findings of fact and law, judgments, and even referrals for professional discipline.
While intentional evasion remains at the core of such sanctions, mere negligence or inattention is no longer treated with “kid gloves” either. Given the foregoing, in-house counsel needs to pay particular attention to e-discovery requests, whether your company is a party or merely a witness upon whom subpoenas have been served.
Know your computer system
For starters, if not already knowledgeable, familiarize yourself with your company’s system for storing electronic information. While you do not need to be an IT specialist, you should have an understanding of your computer system and your retention/destruction procedures and policies.
Develop an action plan
With that basic foundation, you will be positioned to develop a response plan to e-discovery requests and orders. Developing a plan at the outset is a must.
The litigation hold. An integral part of any action plan for e-discovery is to make sure that documents relevant to the litigation are not destroyed but are preserved. Accordingly, when litigation is commenced (or even when you have reason to believe it may be commenced), in-house counsel should promptly craft and send out a written communication to employees alerting them to the litigation or claims, informing them of the suspension of the company’s document destruction policy and of the need to preserve documents.
The foregoing communications have become known as the “litigation hold” and have become an integral part of a company’s responsibility in the discovery process in litigation. Indeed, it is an important affirmative obligation that must be attended to in a timely fashion, not only to ultimately secure important information, but to comply with discovery requests and rules.
Assemble response team. In addition to the “litigation hold” communication, in-house counsel should simultaneously assemble a response team for e-discovery requests, which should include general counsel or a designee from that office, outside trial counsel and in-house IT staff. You’ll want to make sure that outside trial counsel is experienced with e-discovery and is familiar or quickly becomes familiar with your computer system, document policies and procedures and potential sources of electronic evidence.
Outside trial counsel should direct the response plan and team while regularly keeping in-house counsel closely advised as to the progress of the implementation of the plan. In addition, at the outset of the assembly of the team, the roles of each team member should be clearly defined. Depending upon the scope of the work necessary to respond to e-discovery requests, it may well be that a team of outside counsel and inside IT personnel will be sufficient to properly staff the effort.
If the work to respond, however, is significant, consider supplementing your response team with an outside expert and do so as early as possible. While your inside IT people may be perfectly competent, they might well become overburdened in trying to balance their regular responsibilities with that of e-discovery requests/orders. On the other hand, an outside expert can often times quickly and efficiently work with inside and outside team members to determine the scope and how best to respond. This makes for a better, more timely substantive result and one that is economically beneficial despite the added out-of-pocket cost.
Create an inventory and list of individuals. As part of your action plan, the response team needs to initially create an inventory of hardware and software at your company. The team also needs to prepare a list of individuals who are likely to possess responsive documents with interviews by trial counsel to follow.
Resolution of discovery disputes. In developing your action plan to respond to e-discovery requests, you should consider conferring with your opponent early on. Ordinarily, those communications are between outside trial counsel.
Topics to be discussed should include the scope of the requests with a view to limiting the inquiry in time and breadth to what is truly relevant and necessary. Often, very helpful agreements can be reached among counsel, particularly when you have a pending e-document request yourself. For example, agreements might be reached as to time frame, certain key words, or search terms that can significantly reduce your burden.
In the event negotiations of limitations between counsel do not result in a satisfactory agreement, both sides might consider an outside neutral expert to mediate or decide the issues. If all else fails, you can ultimately submit the issue to the court.
In summary, when confronted with an e-discovery request, pay particular attention to the process of responding, with regular updates from your outside counsel through the response.
