5 Mistakes Organizations Keep Making in Litigation
To quote the great Bob Dylan and paraphrase Judge Goodman in the Point Blank Solutions v. Toyobo Am., 2011 WL 1456029 (S.D. Fla. Apr. 5, 2011) case “the times they are a-changin” in the world of ediscovery. But these ediscovery changes do not have to cost your corporation money and add unwanted risk if you keep these 5 ediscovery mistakes in mind.
1. Neglecting to have a document retention policy
More than 80% of all company records are now created and maintained in an electronic format.
A document retention policy involves the systematic review, retention, and destruction of documents received or created in the course of business. Too often, organizations overlook this vital policy and pay the price. In the wake of an impending suit, bear in mind that organizations must halt all document-handling policies that result in intentional or negligent destruction of potentially relevant data. A document destruction policy will not protect you if litigation becomes reasonably anticipated.
2. Failing to have an ediscovery plan
Organizations embroiled in a legal conflict must have a comprehensive plan for preserving, collecting, analyzing, and producing digital data. This means that an organization’s legal and IT teams must work closely to:
• Prepare for early discovery conferences and production deadlines
• Discuss desired production formats
• Identify key players in the matter
• Recognize critical keywords, concepts, and timeframes important to the dispute
• Consider early data assessment (EDA) and review technology to reduce attorney review time
3. Avoiding “hard to deal with” sources of electronic evidence.
There is no “opting out” of ediscovery – even if the data is contained on a mobile device, a social media platform, or antiquated backup tapes
Rather than ignoring hard to deal with data, there are a vast number of experts that are well-equipped and professionally trained to assist. Work with an electronic evidence expert to define and refine the universe of potentially relevant information and determine the most cost effective approach.
4. Overlooking the weight of potential sanctions.
Recent sanction orders are cautionary tales. Most stem from counsel trying to keep pace with big data and evolving technologies. Judges are expecting e-savvy litigators in their courtrooms and tolerate few excuses when data is destroyed, hidden, or simply not produced. Failing to produce discoverable ESI leaves the court with broad discretion in fashioning appropriate sanctions: monetary fines, adverse inferences, or default judgment.
5. Ignoring the fast-changing world of ediscovery law and technology
Year over year, ediscovery issues evolve at the speed of light, with significant judicial opinions and technology innovations impacting the electronically stored information landscape. Prudent organizations will keep an eye on proposed ediscovery amendments to the Federal Rules of Civil Procedure, as well as judicial opinions discussing technology assisted review and predictive coding protocols.
Interested in more ediscovery tips? Find out if you’re doing the following 7 things to cut ediscovery spend.
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