(*Chip Merlin’s Note–Chris Haley of Trial Exhibits, Inc., was on a panel with John Garaffa, of Butler Pappas, and myself at the recent 2009 Windstorm Insurance Conference. Chris is a veteran Consultant and Expert Witness regarding Electronic Discovery. I asked him to provide a Guest Blog on this increasingly important aspect of insurance coverage and claims practice litigation.)
E-Discovery can be a scary and costly factor in litigation, but with proper preparation before a law suit is at your door, you can avoid disaster.
Five Things To Remember:
- Have a Retention Policy: Businesses should have retention policies to manage how long paper and electronic documents are kept in the normal course of business. Don’t keep what you don’t need.
- Plan Ahead: Because you must preserve documents when a law suit is reasonably anticipated, businesses should plan ahead what they will do to preserve both paper and electronic documents when that time comes.
- Consult With IT: Discuss retention policies and litigation readiness with your IT folks. They hold the keys to the electronic world in your office. You might be surprised to find out what you have and where you have it. IT should be involved with retention policy planning and preservation compliance when litigation is anticipated.
- Audit Retention and Preservation Efforts: A plan is only as good as the execution. Businesses must check to be sure that their retention and preservation plans are being followed. It is not enough to simply send a memo. Employees respect what you inspect.
- Limit the Scope: When faced with litigation it is easy for a business to decide to keep everything, but that can be very costly and uneccessary. Businesses should identify what issues the litigation covers, the employees/departments involved, time frames of their involvement, and where documents are stored. Using the information gathered along with advice from their attorneys, businesses should be able to limit the scope of preservation, avoid mistakes and keep costs to a minimum. I have created an IT eDiscovery Checklist with questions I recommend asking IT and your employees when creating a preservation plan.
I’m often asked where to find more information about planning ahead, good retention policies and proper preservation techniques. Below are several articles and links to resources that will help you find out more.
Links to Information on E-Discovery:
- Assembling the Electronic Evidence Triage Team
- Proactive Preservation Management
- Ten Tips to Clip the Cost of E-Discovery
- ABA Law Practice Management Section E-Discovery Articles
- The Sedona Conference
- Articles by Craig D. Ball
- Discovery Resources
- Kroll Ontrack