E-discovery: Mind your P’s and Q’s

A mantra for e-discovery in 2012

As companies prepare for 2012 and CIOs think of ways to use technology and avoid e-discovery issues and problems, following the mantra “mind your P’s and Q’s”—proactive, preservation, process, proportionality and questions— can yield significant benefits.

Proactive. Companies are struggling to manage the increasing demands of preservation for three reasons: volume, costs and risk of sanctions. By all accounts, traditional reactive approaches to e-discovery are not working. For many companies and lawyers, it is the lack of understanding of the rules, data and technology that leads to an inability to meaningfully discuss proportionality in the area of preservation. For example, cloud computing has become very popular, but that doesn’t mean that your company should jump to the cloud just because a competitor did. Be proactive but also be careful. It might just turn out that the risk/benefit analysis for your company’s data does not warrant the jump.

Preservation. One of the most important ways to reduce risks and costs associated with e-discovery is to establish a defensible preservation protocol. Many e-discovery problems can be fixed if the data has been properly preserved in a timely fashion. Companies can further reduce the risks and costs by insisting on meeting and conferring with the other side as soon as possible after the lawsuit is filed, to negotiate an agreed-upon scope of preservation and production. That will significantly reduce the costs associated with end-of-discovery spoliation fights.

Proportionality. Another key weapon in the arsenal for dealing reasonably with discovery is the concept of proportionality. However, companies need to be proactive in their search for proportionality in preservation and production. Just using the terms will not be enough. Reasonableness and proportionality are principles that are already contained in the federal rules, so it is going to take more concentrated effort.

Process. Reasonable and proportional preservation starts with a records management process. There needs to be an effective and efficient records management process in place that can quickly transition to a preservation process when the duty to preserve is triggered. This fundamental idea cannot be emphasized enough. A defensible process could all but eliminate the probability of any significant discovery sanctions.

Questions. Knowing the right questions to ask can be half the battle in many instances. Education, like technology, in the area of e-discovery is ever-evolving. What we really need is effective education with incentives for all constituents to engage in meaningful and informed discussions. It is only when both sides are educated in the law and informed as to the nuances of the data and technology that they are dealing with in their particular case, will there be any hope for real and meaningful progress.

Predictions for 2012. Cloud computing, social media and data privacy and security will continue to dominate the discussion. The new P’s on the horizon— predictive coding and project management—will be hot topics for reducing costs and minimizing risk in 2012 and beyond.

 

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Kevin Brady

Kevin F. Brady is a litigation attorney who represents clients in corporate and commercial litigation. He can be reached at kfpbrady@aol.com or (302) 540-6877.

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