Best Practices for Navigating E-Discovery: A Whole New World

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Choosing the Right Tools

As demand and need grow, so do the multitude of technology options that organizations and their legal counsels have to choose from when it comes
to e-discovery.

"The variety is enormous," says Willms. That variety can be overwhelming, causing many organizations to look outside for advice and assistance.
"I find that most people, if confronted with an e-discovery project without a process in place, will call somebody they rely on," says Willms. That might be outside counsel. "We get calls all the time from clients or potential clients," he says, adding that Counsel on Call considers itself to be "tech agnostic." "We try to find the best technology that the client might need in a particular situation. It may not be the same thing every time."

Choosing the right tools, notes Carter, can help organizations review less and do it faster. "There are a host of information technology providers that can help," she notes. Certainly, choosing among the various options can be challenging, but Carter recommends working with analysts and asking them for guidance, talking to other companies about the tools they may be using, and looking at two or three different solutions to compare features and options.

Forums such as LegalTech-held each January in New York and each June in Los Angeles-can be a good source of information on technology options. Goldberg also points to The Sedona Conference, a series of think tanks consisting of leading jurists, lawyers, experts, and consultants on antitrust law, complex litigation, and intellectual property rights, as a good source of information. "They're pushing the conversation forward," he says, noting that case law is evolving very rapidly in this area.

Being Proactive

The heat of litigation is a horrible time to run an e-discovery project, says Goldberg. "You're under pressure, there are all kinds of deadlines from the court, and it always ends up more expensive than it needs to be. Litigation readiness simply involves being prepared-understanding the data that you have, where it's stored, and the best way to collect it. Then you put it aside-when you're sued you break out your plan, enact your plan, and monitor the application of the plan. It's really applying a project management mentality for e-discovery," he says.

Elizabeth Cohee is an attorney in Oakland, Calif., and a continuing legal education lecturer in the area of e-discovery, where she focuses on the penalties for failure to execute effective e-discovery. "All litigation attorneys are aware of the [Zubulake v. UBS Warburg] case, where sanctions for failing to properly carry out their e-discovery responsibilities ultimately cost the defendant $29.5 million," she says.

"Companies need to communicate with all employees long before a complaint is filed-preferably in their employee operations manual-what a litigation hold is and what is expected of employees in the event of litigation," recommends Cohee. At the time of an actual complaint, the company should communicate with relevant employees, in writing, about their specific importance in the suit and about the need to preserve data, she says. "It would also be wise to receive a written acknowledgment of that notice." Impacted employees should receive reminders at regular intervals to not destroy documents. In addition, she suggests, "The company will also need to personally interview each relevant employee about pertinent information that might [be] in the employee's possession and beyond the reach of the employer-data on home computers, on BlackBerries, on thumb drives, in personal email accounts. All of this data may be discoverable, and the failure to produce it may be costly."

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