Print This Article

“It is not sufficient to notify all employees of a litigation hold and expect that the party will retain and produce all relevant information. Counsel must take affirmative steps to monitor compliance so that all sources of discoverable information are identified and searched."

So how are you going to help your clients make this happen? Do you have a battle plan?

Enacting the ED Battle Plan

The bottom line is that most corporate clients simply do not know how to properly collect electronic evidence, even with the most sophisticated IT departments. It’s your job, as counsel, to help them understand the importance of the ED process and how to demonstrate to the judge and jury that an honest, good-faith effort was made to identify, collect, and produce all relevant, non-privileged data. By having a battle plan in place from inception, that aligns with your clients’ IT processes with the legal departments’ needs, you can help your clients alleviate a lot of the headaches that can occur when they are required to collect the hundreds of gigabytes and terabytes of data associated with a discovery request. Failure to have such a battle plan can lead to the failure to meet court deadlines, excessive costs and the potential disclosure of harmful, non-relevant or privileged information damaging to your client’s case.

To make this happen, organizations today must treat their litigation response systems as an organized business process. Ideally, this litigation response system involves the following steps:

• Assess the Needs: Through your internal team, or with the help from outside ED strategy experts, corporate clients need to completely review and assess what systems (people, processes, and technologies) are in place. This team can identify what processes are lacking for effectively and accurately responding to discovery requests. The mechanics of this process are important because, if done right, the total cost of discovery response can be significantly reduced.
• Create the Battle Plan: This plan will provide recommendations for personnel roles and responsibilities, technology improvements, a roadmap for responding to each case, and ensuring the process can be authenticated in the courtroom.
• Implement the Battle Plan: Once the plan is developed, IT needs to have in place all of the technology tools and processes needed for responding to discovery requests.

Under Rule 34 of the Federal Rules of Civil Procedure, corporate clients are required to turn over any documents related to the discovery request, whether electronic or in paper form, that are not covered by a privilege rule. The rules of evidence say you don’t have to have both – just a version. A PDF can replace a written, signed copy if not otherwise pertinent to the litigation. By understanding this process and having a solid battle plan in place, in-house legal and IT departments can more readily respond to discovery requests, reduce litigation costs from production and time spent by outside counsel, and ensure compliance with the court.

Getting an Outside ED Specialist Involved Can Save Time and $$$

One of the key steps to ensuring an aggressive, winning battle plan is to leverage the resources of an outside ED consulting firm. I have often turned to outside ED specialists, like Fios, to help clients create a strategy that makes sense from the inception of the litigation. Because the ED specialists I work with have lawyers internally that understand and are experts in the entire litigation process, it makes it much easier for me, as outside counsel, to help clients ensure all of the data collected is readable, in a format that can be shared with the litigation team, safe from spoliation and admissible in court.

Many IT experts or even individuals on the litigation teams simply don’t understand how easy it is to taint electronic evidence. When copying client data for production or review, failing to make sector-by-sector images prior to viewing may result in spoliation. Simply forwarding an email can cause data to be overwritten or metadata (e.g. dates) to be changed. And, sanctions for spoliation can be severe. Recently, a federal judge ordered Philip Morris USA and parent Altria Group to pay $2.75 million in sanctions after finding that senior executives failed to preserve e-mails that might be relevant to the Justice Department's lawsuit against the tobacco industry. In several jurisdictions, spoliation even gives rise to a separate cause of action in tort. At the federal level, criminal penalties apply to the obstruction of justice through destruction of evidence.

While the rules associated with ED are ever changing and each jurisdiction may be different, a solid ED battle plan can help your clients avoid these types of sanctions, reduce litigation costs, and help your team efficiently prepare winning cases that are defensible in court. Your clients will thank you knowing they won the war through your effective ED battle plan.