Planning Early Can Reduce Discovery Costs

How many emails does your business send and receive in one day?  Ok, that might not be a fair question. How many emails do you personally send and receive in a day?  According to the Radicati Group, the average business user is expected to send and receive approximately 120.4 emails per day in 2017.[1]  That does not include business text messages, calendar invites, calls, and social media messaging.

Every company involved in a lawsuit will have to go through the process of gathering documents to turn over to the other side.  That process, which attorneys call discovery (and when it involves electronic information, “eDiscovery”), is usually the single largest cost driver of litigation for companies.  eDiscovery is expensive and disruptive for small businesses and big companies alike.  Fortunately, businesses can reduce the pain (and some potential risks) through some very easy suggestions, many of which boil down to simply planning ahead. 

When your company anticipates that it may become involved in a lawsuit, either as a plaintiff or defendant, either your in-house lawyer or an outside law firm should conduct a preliminary investigation of the facts.  If your company chooses to investigate on your own, be sure that whoever is responsible for the investigation takes detailed notes to share with the company’s outside attorneys.  Speak with key employees, and in addition to learning more about the facts behind the claim, obtain the following information:

  • Where the relevant files are located;
  • If the subject employee(s) conducted all relevant business by work email, or if personal email was also used;
  • If the employee(s) conducted any relevant business by text messages or over social media;
  • If the employee(s) discussed relevant matters with any other employees or third parties;
  • If the employee(s) made use of personal computers to work on any relevant company business;
  • If all emails from the cell phones of employee(s) automatically sync with the company’s servers; and
  • If the employee(s) deleted any relevant files/emails/other information.

At the same time your company conducts its investigation, instruct employees and any external IT contractors to preserve all files related to the potential claims.  Most often, law firms and companies issue a “litigation hold” notice that lists the types of documents and information that employees should preserve, and how best to preserve it.  If your company has an in-house counsel who has issued litigation hold notices, now is still a good time to involve your outside counsel.

Next, and this may seem counterintuitive, but be prepared to turn over everything to your company’s outside litigation counsel, including employee email boxes, hard copy file folders, copies of file folders on servers or hard drives, text messages, etc.  Your company’s staff should not try to sift through this information and find relevant documents.  Not only does that create unnecessary risk (to be addressed in future columns), but it also wastes time.  Your company’s outside counsel has powerful tools and experience likely permitting a more rapid and efficient search of large amounts of data for relevant documents.  Native email programs (Outlook, Apple mail, etc.) do not have the same tools, and your company’s IT staff/contractors may not have experience in retrieving data to use in litigation.  Again, coordinate with your business’ outside counsel on how best to gather and transmit this data for their review.

Following these recommendations will not only help reduce costs, but it will also enable your company’s outside counsel to evaluate the strength of the case early, which may lead to a quicker and more cost-efficient resolution.  It also reduces unpleasant surprises during a lawsuit – which helps everyone sleep better at night.