So You Think You’ll Be Sued

Companies use the cloud, share points, drop boxes, databases, websites, and “E-rooms” to store data. This volume of potentially relevant information is far greater than the discovery a company is likely to receive from an injured party when notice of an accident or an employment related claim becomes a lawsuit. The authors provide a checklist to navigate this asymmetrical e-discovery situation.

They note that discovery of ESI is a fact of life in most litigation. Federal Rules require that it be addressed as early as the Rule 16 Conference. These rules place affirmative duties on counsel to preserve and produce potentially relevant information. They also apply to third parties responding to subpoenas.

You must issue a litigation hold whenever you are or should be reasonably aware of anticipated litigation. Notice of an accident or claim or an administrative agency’s issuance of a right to sue are all events that trigger the obligation to issue a hold. In the process you will need the help of a knowledgeable member of your company’s IT department and/or an outside forensic consultant.

By the time you are producing documents, you are more knowledgeable about your company’s data sources than your adversary is. Use that knowledge to come to agreements limiting what will be reviewed and how; and what, when and in what format you will produce ESI. Be flexible and willing to re-evaluate your e-discovery strategy at key points to ensure efficiency, effectiveness and defensibility.