When you read about litigation readiness, typically larger companies and their legal departments get all the attention. After all, many of the high-profile e-discovery cases have involved such well-known names as Morgan Stanley, Qualcomm and UBS Warburg. The truth is that small- and medium-sized enterprises (SMEs) face similar issues, but may lack the resources to address them as fully as they'd like.
Smaller legal departments tend to be underserved in the legal and technology markets, or so it seems. They generally have smaller litigation dockets, along with smaller headcounts and budgets to manage them. While the vast majority of your litigation matters do not rise to the level of the more newsworthy cases, that doesn't stop the occasional large matter from coming your way--typically complex litigation or a regulatory investigation. With more information being stored electronically, these tend to be disruptive and costly fire drills--especially if your proactive response preparation is lacking.
Train Your Employees
People are your most valuable asset, so why not invest in them? Education and training can help reduce your e-discovery costs. Consider adding effective e-mail usage to your training curriculum, including such topics as appropriate content and retention, and when to use other methods for communication. If you don't have one already, consider creating a corporate university for training initiatives and related programs. Among other benefits, it will allow you to track the status and completion of training on various topics.
This brings us to the big "C"--Compliance. The best policies are only as effective as their overall compliance within your company. How do you know your various electronic usage and retention policies are working if you don't have any internal audit or feedback mechanisms on overall enforcement and compliance? A policy that is not uniformly enforced tends not to be much of a policy and may have the unintentional consequence of actually increasing a company's risk rather than reducing it. Working with your HR and training organizations in shoring up these areas helps to show that not only do you have a policy, you actively educate employees on it and have records confirming enterprise training completion rates.
Records & Information Management
Records Management has clearly moved to the forefront of many organizations' litigation readiness initiatives. The more you can simplify your record types and retention categories, the better. However, it's necessary to point out that while improving Records Management (RM) is vitally important to reducing mountains of data long-term, it's not a panacea in of itself with respect to discovery. The simple fact is that declared records are but a subset of discoverable information under the FRCP. With a few exceptions, information stored outside your company's RM system is generally discoverable if relevant and responsive, or if it aids in the discovery of other relevant information.
That said, however, the more your information is well-managed within defined and enforced retention periods, the greater the reduction in risk. Thus I prefer the term, Records and Information Management (RIM), which encompasses a wider focus on managing the cradle-to-grave lifecycle of corporate information in a variety of paper and electronic formats. Companies looking to reduce their overall risk need to continue their efforts in these areas, because over time they will continue to reap benefits.