Ways to Reduce Litigation Costs

In this era of Big Data, many organizations’ bottom lines are taking a large hit due to the increasing costs of defending themselves in litigation. There are two steps you can and should take now that will have a profound effect on your organization’s bottom line. The first step is to develop a strategic partnership with an electronic discovery services provider to perform some or all of your electronic discovery processes when you become involved in a lawsuit. Another important step is to form a data committee tasked with writing and implementing a reasonable organizational data policy.

Strategic Partnership

Do you follow the lead of your outside counsel concerning storing, collecting, analyzing, processing, reviewing‎ and producing documents during the discovery process? Have you considered the budgetary benefits of taking the lead yourself by developing a strategic partnership with a service provider to perform some or all of these stages of the EDRM?

The portion of your organization’s legal budget going to outside counsel should be paying for what they are best at: developing and executing a strategy that leads to a positive outcome in a particular lawsuit and defending you in court if a case is not dismissed or a settlement reached. Many law firms have come to the realization that by employing efficient and cost-effective technologies and processes, they show their clients that the firm truly cares about providing value, which leads to a solid ongoing relationship and additional work.

Forming a strategic partnership with an electronic data services provider allows you to vet and negotiate pricing and use one provider for all your cases, no matter where it is being litigated. Since cases are filed in various jurisdictions, organizations often find that they need to use a number of local attorneys for the different areas. And those various local counsel all use different electronic discovery service providers with divergent pricing and processing limitations.

Another plus of forming a strategic partnership with an electronic discovery services provider is the knowledge base and experience you gain. There are many options involved in electronic discovery, and some providers do some processes well but struggle with others. It is important to find an electronic discovery services provider with a robust suite of services and a great deal of experience in a wide variety of industries. You need a partner with a proven record of investment in and use of technology and, most important, the right people to use it. Along with processing for review and hosting, look for a company with the resources and proven experience to assist with managed review and computer-assisted review/predictive coding. In large cases, these are two areas where the greatest efficiencies can be gained, and thus money saved. Additionally but no less important, they must have the processes and hardware in place to keep your data secure at all times.

(For more on what to expect from an electronic discovery services provider, see my previous blog: What Should You Require from an E-Discovery Services Provider?)

Data Policy

In the face of an overbroad discovery request by opposing counsel, you may need to make the argument that the requested documents are not reasonably accessible, in which case your organization may need to prove that your data policies are reasonable. Having a policy in place provides evidence that you have considered the various issues and have come to a reasonable decision concerning how you deal with various types of data. How prepared are you to provide outside counsel with what is needed for the Rule 26 conference to discuss electronic data in an efficient and cost-effective manner? Outside counsel will need answers, and you can have a direct effect on attorney billable hours and your own labor costs by having those answers when they are requested.

If you have no written policy in place, I highly recommend forming a data committee made up of representatives from various departments, including records, IT, legal, compliance, and the executive team. That committee should be tasked with considering each issue, maintaining complete and accurate notes concerning the discussions and writing and implementing a policy.

Issues to consider, document and put in writing:

• How do you handle litigation holds? Remember there is a duty to preserve documents when you have a reasonable expectation of legal action. Document how that will be decided and make sure that your decision is reasonable.
• When involved in litigation, at what point do you retain outside counsel?
• Do you have a data map? Outside counsel will need to know where all your organization’s data resides.
• Have you categorized your data by file type or document type?
• How often do you delete information and what categories of data do you need to keep active? (For more concerning defensible deletion, see my previous blog: E-Discovery and Big Data: Balancing Cost and Defensibility with Retention and Disposition Policies.)
• Are there certain types of documents your organization is required to keep for certain amounts of time due to industry regulations?
• How often do you back up your data?
• Where do you store your backup data and on what type of media?
• Do you have a coherent and well-documented policy to train and verify that all employees know what is and what is not allowed when dealing with company records and organizational computers? In this era of Big Data, every organization needs a written policy which is provided and explained in detail to all employees, and which they then sign. All employees should also be retrained and should re-sign the policy ‎periodically (at least yearly). Issues to cover in the policy include but are not limited to when to delete files, whether the use of flash drives or home computers is allowed (and to what extent) and employee use of social media on the job and off.

Developing a strategic partnership with a top-notch electronic discovery services provider will save time and money by streamlining and standardizing as much as possible the electronic discovery processes your organization uses when involved in litigation. Developing and implementing a data policy are crucial to your ability to respond quickly to litigation holds and when preparing for a Rule 26 conference to discuss electronic data.

Together, these two important steps will allow your organization to control costs when your organization is required to collect, analyze, process, host, review and produce documents.