Jonathan Redgrave
Many corporate law departments faced with adversity in terms of significant litigation or government investigations are often told it is a "bet the company" event and thus no effort should be spared in the defense of the organization. In the world of electronic discovery, this has translated into legal and service provider bills in the millions of dollars.
Yet there is a significant difference between spending substantial resources on necessary and meaningful tasks in a strategic fashion and simply handing blank checks to law firms, consultants and other service providers to do what they want in defense of your kingdom.
Here are five suggestions for organizations in crisis to best manage their resources and avoid waste in e-discovery:
1. Identify national discovery counsel to advise and coordinate all efforts, from preservation through production.
Too often we have seen companies waking up after a significant event to see reams of bills for services that were never needed or, in some cases, never even requested. We have seen instances of multiple counsel, all acting in good faith, duplicating efforts that do not advance the ball, but double the bill. We have also seen examples of counsel who do not understand the intricacies of modern enterprise data environments making promises as to preservation and production that are costly at best and unattainable at worst, creating substantial problems in the matters that impair the organization's credibility as well as consume its resources. National discovery counsel can play a critical role in avoiding these areas of risk and waste through coordination, strategic direction and executional oversight.
2. Explore alternative approaches to negotiating protocols for preservation, search and retrieval, production, privilege and protective order.
Too often organizations will "hunker down" behind traditional strategies and approaches to discovery, often incurring substantial costs that only much later will be revealed as totally unnecessary to the defense of the matter. Yet times of crisis are also times of opportunity to think "outside of the traditional box" of litigation at your company. Investigate how you can reach omnibus agreements on the scope of preservation and production rather than blindly trying to save everything "just in case." Look at how you may be able to provide access to select systems to avoid costly reviews and productions. Explore how you can agree upon technology-assisted review to eliminate discovery disputes, while simultaneously eliminating layers of costly human review of documents.
3. Don't be afraid to deploy new technologies and processes to review and produce information across all related matters.
While the world of technology-assisted review in litigations and investigations is still in its relative infancy, the potential for significant cost savings is substantial. Capturing these savings requires the deployment of proper processes around defensible technology as well as the ability to gain the confidence of regulators, adversaries and courts regarding the approach. You also want to find ways to have as uniform a process as possible across the various related matters. This requires a coordinated and strategic approach from the very beginning.
