Taming The Litigation Beast: Are You Ready?

By Mary Mack

(Back to article)

Document discovery has historically been a paper-based process. Plaintiff's counsel requests documents, and defense counsel searches and sifts through desk drawers and file cabinets to locate, review and produce copies of responsive information.

For more complex cases, defense teams often use scanning and coding services to transform the paper documents into electronic documents in order to more efficiently review and manage the information and discovery response process.

Today, however, more and more of these documents are created and stored electronically. The ease and low cost of creating and storing these documents have changed the rules of the game dramatically. Recent studies show that more than 90% of all new corporate data is created and stored electronically, and most of this data never sees the paper format.

The proliferation of computers and low cost of storage has resulted in an information explosion, and the amount of potentially relevant data now involved in most every type of lawsuit has grown exponentially.

The Paper Chase

In the past, complex cases may have involved hundreds of thousands of pages of documents that needed to be identified, collected, reviewed and produced. Today, even simple cases may involve that many documents, and complex cases now regularly involve hundreds of millions of pages of documents, or the equivalent of several semi trucks full of bankers' boxes.

Even the lexicon of describing the volume of data is changing from the paper-based 'number of pages' to the digital nomenclature of 'megabytes, gigabytes and terabytes' of data. To make matters worse, these electronic documents are located all over the corporate computer network from email servers to file servers to laptops to personal digital assistants (PDAs) to back up tapes and zip disks. Even recordings and stored data from cell phones and voicemail systems are becoming part of the pool of potentially responsive data.

The sheer enormity and complexity of the transformation in discovery response practice can be overwhelming to a defendant faced with a discovery request. Where is all the data stored? How do I locate it? How do I access and extract it off the network? Etc., etc.These questions and many more are asked over and over by in-house legal departments. Defending the corporation against lawsuits is a standard part of conducting business, yet there is no organized business process for discovery response in an electronic world.

In-house lawyers are finding themselves relegated to doing the best they can, and are increasingly frustrated over being told it is "impossible" to access a particular piece or type of information only to learn (usually at a hearing and usually through expert testimony provided by the opposition) that access to the data is not only possible but not difficult either.

Getting Prepared

So, how does an organization that faces litigation get prepared? By being litigation ready. Organizations today must consider implementing a litigation response system as an organized business process. Ideally, this litigation response system involves the following steps:

  • Assess the current litigation response 'system': A litigation readiness team can help an organization completely review and assess what systems (people, processes and technologies) are in place. More importantly, the team can identify what processes are lacking for effectively and accurately responding to a discovery requests. The mechanics of this process are important because, if done right, the total cost of discovery response can be significantly reduced.
  • Create a litigation response plan: The plan should provide recommendations for personnel roles and responsibilities, technology improvements, and a roadmap for responding to each case.
  • Implementing the litigation response system:Once the plan is developed, IT needs to have in place all of the technology tools and processes needed for responding to discovery requests.
  • One emerging technology tool is a Web-based system for tracking and managing responses as lawsuits are filed so the legal teams, either at an outside law firm or in house, and their IT departments can stay connected and in synch on any given matter.

    By understanding the process and having a plan in place, corporate legal and IT departments can more readily respond to discovery requests at any given time without hampering the day-to-day operations.

    Mary Mack is an attorney with more than 22 years experience. As the director of Sales Engineering for Fios, a provider of electronic discovery services, she helps customers define the scope of potential projects. For more information about Fios please visit www.fiosinc.com or call (877) 700-3467.