If it looks like your company might be sued or might sue someone else, an immediate headache will probably be electronic discovery.
Your company will likely have to preserve and share digital information.
The party that appreciates this process most might be the judge. Discovery often saves the court tremendous time, confusion and aggravation. Doing it badly isn’t a good idea.
Botching electronic discovery
Early in a federal suit against Tennessee-based HarperCollins Christian Publishing, the judge chastised the company for slow-walking its preservation of digital documents.
The jury may have taken note when the judge criticized the “arrogance by management, lack of initiative by IT, and a pitiable lack of legal leadership” at the company.
This year, the jury unanimously awarded the plaintiff punitive damages, citing the discovery phase among the evidence of a pattern of misconduct in the defendant.
Electronic discovery is a big job
At the first sign of a lawsuit, wise companies usually place a "legal hold" to preserve any digital or analog information that might help either side. Failing this test can mean trouble.
Technical and legal expertise often helps a company decide what and where the relevant data might be.
Documents, emails, voicemail and text messages, VOIP, or social media could be stored on mobile devices, hard drives and networks. Does your company still own any backup tapes, CD ROMs, or floppy discs?
Getting it right
Opposing companies often work with each other’s attorneys to make the decisions.
For example, the judge’s time may be wasted if each side uses different keyword searches. Anticipating the terms the judge might choose could go over well.
Leaving out irrelevant data can save everybody time and money. But unless the decision is mutual, culling the wrong data can look like misconduct.
Seemingly easy decisions sometimes cause the most trouble. Can confidential customer or client information be excluded? Who will be the custodian of the data and in what form?
What if you’re not involved in a lawsuit (yet)?
The amount of digital data everyone generates and collects continues to balloon. Meanwhile, lawsuits don’t seem to be going out of style.
As part of their routine data management practices, many companies are now taking the possibility of future digital discovery into account.
They’re finding that future, unanticipated legal hassles can be reduced by making the right technical, management and legal decisions today.