The very word can strike fear into the heart of every in-house lawyer. The costs can be astronomical and the price of mistakes can be fatal to a case. What can you do to minimize risk? As with many things in life, the keys are preparation and follow-through. Particularly for companies that are regularly involved in litigation, in-house counsel and compliance personnel can reduce uncertainty by understanding their information systems and staying on top of technological changes. When litigation is imminent or a government investigation strikes, companies with well-oiled processes will be in a better position to minimize costs and reduce the risk of devastating sanctions resulting from spoliation or incomplete compliance. While the details of the e-discovery process will be different for every company, attention to these five critical points will reduce the risks of a calamity with respect to electronically stored information (ESI).
1) Litigation Hold Notices
2) Document/Data Retention Policy
3) Litigation Readiness
4) ESI Collection/Review/Production
5) Data Security
One final note that applies throughout any e-discovery process: Appoint a single person within the company to be in charge. Be prepared to have that person be subjected to a deposition or testimony in court to explain and defend your process.
E-discovery is never simple and few would ever regard it as fun. But attention to these steps, and incorporation of as many of them as possible into your regular compliance program, will help control your costs and minimize the risks of missteps along the way.
Jeffrey R. Moore is an attorney in the Business Litigation and Product Liability Litigation practice groups.
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David A. Wilson is partner-in-charge of the Washington, D.C. office of Thompson Hine LLP. He focuses his practice on complex civil litigation, internal and government investigations, and securities enforcement matters. He has led or otherwise been involved in many internal corporate investigations, including audit committee and special committee investigations.