Litigation Readiness. Interesting phrase, but what does it mean? Can any organization ever truly be ready for litigation? In the world of eDiscovery, ‘litigation readiness’ has specific connotations and can play a critical role in the manner in which an organization is able to manage its responsibilities in future litigation.
The ever-increasing volumes of electronic data retained in diverse storage media within most organizations can lead to significant business disruptions and potentially high electronic discovery costs when litigation is pending. From an eDiscovery perspective, litigation readiness is essentially a defined set of business practices and resources that will enable an organization to respond in an organized, timely and cost-effective manner to all discovery requests.
The significant benefits of implementing a litigation readiness program include:
· Cost and time savings. Respond to regulatory and discovery demands more quickly and at a lower cost than otherwise would be the case.
· Prompt assessment of threatened or actual litigation by legal counsel. Assess the merits of each matter more promptly and decide on an appropriate legal strategy or course of action at the outset, before significant costs or disruption to business is incurred.
· A safe and readily-accessible environment for documents. Mitigate the risk of lost data, sanctions, and spoliation claims, and potentially utilize existing online, near-line and archival storage systems more efficiently.
· Understanding of business-critical information. Enhance organizational understanding of the data it creates and accumulates, and the value that can be generated from that information.
· Peace of mind for senior management, board of directors, in-house counsel. Enjoy a higher level of confidence in the organization’s ability to meet its legal and regulatory requirements.
In its most basic form, preparing for electronic discovery requires the creation of a litigation response plan outlining how litigation will be handled; this should take the form of a general framework which can be modified as needed to fit any situation. The litigation response plan should address how data collection will be handled, how a litigation hold procedure will be implemented, and how electronic documents are to be created, used, and stored. The key steps for developing such a plan and achieving a state of organizational litigation readiness are outlined below.
Essential Steps to Achieving Litigation Readiness:
1. Determine how data is created, used and stored; create a Data Map
Developing a thorough understanding how information is created, used, stored and destroyed through the normal course of operations is a critical first step in the litigation readiness program. The results of these investigations are typically recorded in a Data Map.
2. Design and implement an electronic document retention policy
An electronic document retention policy provides direction for the retention and destruction of electronic stored information (ESI), including e-mails, word processor documents, spreadsheets, database records, and any other type of ESI. The policy must clearly define processes not only for retention and destruction, but also for suspension of destruction and responding to litigation and regulatory production obligations. Setting out such policies in advance will save both time and money when responding to discovery requests. It is important to recognize that document retention policies are not effective unless they are firmly adhered to, which means a policing system will likely be required.
3. Build a litigation response/eDiscovery team
The emergence of formal eDiscovery Teams over the last couple of years is a product of the rapidly growing need to manage an organization’s ESI for litigation and regulatory purposes. The eDiscovery Team’s primary responsibility, as you might expect, is to develop and execute the organization’s discovery response plan. This plan typically has three basic and familiar elements: (1) repeatable business processes for managing ESI, (2) appropriate technologies to facilitate the management of ESI, and (3) identification of the people who will use the technology and implement the processes.
Depending on the organization’s management structure, the eDiscovery Team may consist of corporate in-house counsel, outside counsel, members of the IT department, and an internal or external e-Discovery expert. Electronic discovery has a way of interfering with an organization’s normal business activities and creating a great deal of tension throughout the organization. It is best, therefore, to obtain the visible support of the organization’s leadership team to reinforce the efforts of the eDiscovery team.
4. Create litigation hold policies and procedures
A litigation hold procedure sets out the process by which an organization’s usual document retention procedures are suspended in order to ensure that all documents that may be subject to a duty to preserve are retained. The IT department will have to suspend normal practices as prescribed under the document retention policies, and a notice that document deletion must cease will have to be sent to all employees likely to be in some way involved in the lawsuit.
5. Develop a document collection procedure
A collection procedure should be developed in advance of litigation so that collection will take place as quickly and efficiently as possible. The plan will take into account the organization’s current and projected IT infrastructure, and include provisions for modification as new technology is introduced into the IT infrastructure over time.
Since certain documents will be relevant in a wide variety of different legal proceedings, and will regularly need to be produced, the collection plan should also include provisions for the reuse of previously collected information.
6. Test, modify and implement the litigation readiness plan
The eDiscovery Team will need to develop a process for regularly checking all aspects of the litigation response plan that is put into place, and for continually monitoring eDiscovery technological and legislative changes that may impact the plan. The document retention policy, litigation hold procedure and collection procedure must each also be evaluated on a regular basis. As well, there should be regular assessment of any gaps between policy and procedure.
It is best practice to set up a pilot project in order to implement and test the developed plan. This will include developing metrics to ensure that the pilot can be objectively evaluated and appropriate modifications to the plan can be made if required. Once the pilot stage is completed, the eDiscovery team needs to roll out the plan to the entire organization. This will include training staff who will act as trainers and coordinators for the rest of the organization.
The development of a formal eDiscovery Team and associated litigation readiness plan will prove to be of great value to any organization potentially confronted by litigation or ongoing regulatory oversight. While some large organizations have the resources and internal fortitude to undertake a litigation readiness program without outside assistance, most do not. Retention of an eDiscovery service provider with expertise in this field can make for a far more efficient and thorough approach to the planning and implementation of litigation readiness initiatives, and brings with it an important sense of urgency that might otherwise not be the case. At H&A eDiscovery, we have assisted many organizations with this complex process and would be pleased to illustrate how we can help your organization reach a state of litigation readiness. For further information, please call Oleh Hrycko at 416-233-5577 or email him at ohrycko@haediscovery.com.