5 Defensive Tactics for Corporations

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Aug 13

With the movement of corporate legal departments to take more control over downstream litigation, there comes new demands for counsel to build an effective and budget-conscious case before passing to outside counsel. While corporate counsel has always assumed the role of quarterback when new matters pop up, inside counsel is now taking on full responsibilities—identifying the case, recording findings, prioritizing needs, tracking progress and identifying future hazards—all before handing the case off to outside counsel.  To effectively prepare for incoming litigation, corporate counsel should consider implementing the following five defensive tactics to streamline the litigation process and trim costs.
1. Know Your Data.  One of the more time-consuming jobs in investigating new claims is identifying where relevant data resides.  Companies today are largely reliant on an army of laptops, servers, smart phones and email systems.  Identifying which device or network contains the needed evidence can take significant time and resources.  The key to quickly identifying the location of documents is to know how your data is structured.  That usually requires a map.  Data mapping allows the fact finder to locate evidence without sifting through gigabytes of irrelevant documents and needlessly enlisting the help of IT.

2. Develop a Streamlined Readiness Plan. A buttoned-up litigation plan in the event of any lawsuit can alert the appropriate personnel and preserve evidence within minutes of the notice.  The plan should identify who should be contacted with questions, what devices, email stores and file shares should be preserved, and where data should be sent.  Ideally working in tandem with the data map, the plan should allow the general counsel’s office to hit the ground running as soon as the notice arrives.

3. Designate a Coordinator. All of this preparation requires a stakeholder.  A key point of contact whose job it is to monitor and update the data map, oversee the preservation policy timelines and coordinate the litigation readiness plan when notice is received.  An appointed coordinator can untangle issues between the General Counsel’s office and IT as well as act as a liaison with outside counsel when the time comes to hand off the case.

4. Identify a Compatible Litigation Support Partner.  When it comes time to bring in outside resources to collect and preserve ESI, it is always best to work with a partner that is both trusted and knowledgeable about your environment.  Recreating the wheel every time a new litigation event arrives breeds inefficiencies and breaks budgets.  Trusted partners can help control costs by knowing the key personnel and being familiar with the technical landscape. 

5. Be the Boss. Budgets for litigation matters often go sideways when the decision-making powers are taken away from corporate counsel.  Time-tested working relationships are often cast aside by outside counsel and replaced by a lit support partner with no knowledge of the client's corporate infrastructure.  The result is a new lit support partner who needs time to get up to speed rather than the trusted advisor familiar with your environment.  Inside counsel can take control of the litigation budget by insisting on the advisor who can provide you with the most value.

David Weber is General Counsel for Digital Discovery (www.digitaldiscoveryesi.com) and serves as a computer forensics consultant and eDiscovery expert to corporations and law firms. Email him with comments or questions at dweber@digitaldiscoveryesi.com.