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Last week’s column discussed how to resolve information technology and intellectual property disputes early and before they mushroom into full-scale warfare. But that isn’t always possible, of course. When litigation is inevitable, is your company ready to handle the various forms of electronic data that must be harvested and handled as part of the legal effort? Unfortunately, for most companies, the resounding answer is “no,” and they simply try to deal with electronic data for litigation purposes on a fire-fighting basis. With some advance planning, however, companies can be ready in advance. THE PROBLEM It has been estimated that over 90 percent of new corporate data is created on disparate electronic systems such as computer networks, laptops, PDAs and cell phones. The sheer volume of such newly created data is astounding. When a lawsuit is anticipated or initiated — especially one addressing complex IT or IP issues — the electronic data relevant to the lawsuit is quite broad, especially when viewed in light of liberal discovery laws. Issues that must be confronted by a company include whether (a) the company properly has preserved relevant data, (b) the company can recover and retrieve the relevant data, (c) the company can segregate out irrelevant and privileged data, (d) the company can identify truly key data, and (e) whether the company will have to turn itself upside down in the process of assembling the data. Generally speaking, even though litigation is a fairly regular part of conducting business for major companies, usually these companies do not have an organized process for litigation response. Thus, the handling of electronic data is often dealt with on a crisis basis, without any forethought. This, frankly, is surprising, given that parties in lawsuits now routinely request electronic data as part of their discovery requests. GET READY Companies that regularly find themselves in litigation truly need to adopt an organized business approach to handle electronic data for litigation purposes. They should consider discussing strategy with counsel who have devised programs in this area and potentially with electronic discovery and litigation readiness vendors. One such vendor is Fios Inc., which has developed a service aptly called “Litigation Readiness.” This service involves three primary steps. First, assessing a company’s existing litigation response system, to the extent there even is one. Second, reviewing the company’s structure and developing a plan that will take into consideration all of the process idiosyncrasies that occur in the daily life of the company. As part of this step, recommendations are provided for IT improvements and a road map for responding in each case. Third, putting the new litigation response plan into place, which includes all of the technology tools and processes needed for responding to electronic data discovery requests. The plan will enable monitoring of the data that has been harvested and that has been produced to the other side in litigation. CONSEQUENCES By being proactive, companies can — at a minimum — save large sums of money when it comes to managing electronic data for litigation purposes. Plus, they are better able to harvest the most key information that may help them to succeed in their cases. On the flip side, the failure to manage electronic data properly for litigation purposes can lead to increased costs, an undue company burden, and even worse, problems such as charges of spoliation of evidence. Eric Sinrod is a partner in the San Francisco office of Duane Morris ( www.duanemorris.com), where he focuses on litigation matters of various types, including information technology disputes. Mr. Sinrod’s Web site is www.sinrodlaw.com, and he can be reached at [email protected] . To receive a weekly e-mail link to Mr. Sinrod’s columns, please type Subscribe in the subject line of an e-mail to be sent to [email protected] .

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