Tips For Ensuring That Your Company Is Prepared For eDiscovery In Litigation
At first, it may seem that only the government and how citizens vote can change laws and the legal process. The judicial system, in most countries, was set up decades ago, if not centuries. And over the years, while some laws have changed, the general process has remained. However, technology has begun to trickle into the legal sector. Because of this, how companies approach their legal cases also needs to change. Here are just a few tips to help companies when facing eDiscovery in litigation.
1. Rework How You Retain Records
Every company, no matter the size, should take a look at their records retention policy. Due to security risks with electronic data, as well as the fact that electronic data has surpassed paper-based systems over the last decade, both regulatory and statutory burdens have changed. If a business does not want their legal positioning to be subverted, they need to become conversant with any changes that governing bodies are making.
For small companies, this may simply be reviewing the latest developments and creating a records retention plan and procedure. For medium-sized companies, it is wiser to go further than a formalized policy. A good idea is to send IT and HR personnel for eDiscovery training. They can then relay the main points to the rest of the staff and ensure that the entire workforce understands what they need to do in order to abide by the policy. For the largest companies, it might be necessary to either hire an employee specifically dedicated to eDiscovery and litigation, create a committee that is responsible for training the workforce on record retention, or even have in-house counsel hire outside counsel that has a well established record with eDiscovery and litigation.
2. Strategize How You Will Respond To Litigation
Doing everything by the books does not prevent a company from being sued. A disgruntled former employee, a dissatisfied customer, a frustrated vendor, or a struggling competitor could file a suit. And beyond guaranteeing that the entire workforce is retaining records appropriately, every company should plan out a strategy that prepares them for entering into litigation.
This strategy could include three aspects. The first is explaining to employees that, once litigation begins, each employee has a duty to preserve. This means that they must avoid the destruction of documents. If this is not communicated clearly, and document destruction does occur, sanctions can be put on the company.
The second aspect of a litigation response strategy is creating strong relationships with vendors that specialize in litigation holds. These vendors oversee document retention, knowing exactly which documents need to be retained and which ones do not. This can be end up being much safer and more successful than relying on employees to preserve the right documents—some employees will be overly cautious and preserve everything, while others will be more reckless and under preserve.
The third aspect is likely only necessary for companies that regularly face litigation. This step is creating a response team that can immediately react when a lawsuit presents itself. Each team member should be well versed in both eDiscovery and litigation, understanding the ins and outs of document preservation.
3. Invest In Training
eDiscovery, while it will become likely become general legal knowledge in the coming years, is currently a niche field. Not every lawyer knows how it works. However, if a company has general or in-house counsel, the legal team plays an essential role in preparing for eDiscovery litigation. It is for this reason that companies should look at one of three options.
The first and most long-term and cost-effective option is to send the general counsel for eDiscovery training. For the most success with this option, due to advancements in the field, this training should be completed on an annual basis. Alongside this training should be an in-depth review of the company's record retention storage, retrieval, and other technology, as well as a thorough survey of the company's records.
The second option is to hire new general counsel or other personnel that has experience with and education in eDiscovery.
The third and final option is to have the company's general counsel collaborate with outside counsel with eDiscovery litigation does ensue.
4. Additional Considerations
While creating a record retention policy, educating staff on their duty to preserve, and employing well-trained general counsel is a good place to start, preparing for litigation that involves eDiscovery takes additional considerations.
First, a company needs to think about how they will deal with social media, both in terms of the company's social media presence and employees' social media presences. Tweets, posts, pictures, videos, and messages have the potential to be included in eDiscovery. In order to prepare for this, companies should create policies for the marketing team, the customer service team, and the entire workforce.
Second, companies need to take into consideration cloud storage and how it will effect eDiscovery litigation. The cloud makes discovery requests much more complicated because a cloud service provider is involved. The reason for this complexity is that the provider has control over the documents in the cloud and must cooperate with the legal requests. Not all providers are willing to do this. It is best to find out a cloud service provider's stance and procedures before agreeing to use their services.
Third, companies should look at the technology that they are using and evaluate the effectiveness. If the technology is going to make eDiscovery more difficult, alternative options should be reviewed.
Litigation involving eDiscovery does not have to be a nightmare. It can and should be a smooth process. However, it does require companies to look at their policies, tweak them, and then continue reviewing and tweaking on a regular basis.