Cut costs, risks with proactive litigation plan.

• Author: Wylie, Michael C.

In the last few years, production of electronically stored information (ESI) for business and other purposes has increased exponentially. As the amount of information that organizations maintain grows, so do the costs and risks associated with effectively managing that data.

To counter these effects, it is essential that organizations prepare themselves for potential litigation by creating a litigation readiness plan. By mapping their data types, locations, and custodians and establishing plans to respond to discovery, organizations can save money and reduce risk in litigation.

As a result of this complexity, discovery obligations necessarily involve not only legal counsel, but also records and information management (RIM) and information technology (IT) personnel. Operationally, these groups work independently. As such, solutions created solely to solve RIM or IT problems may create inefficiencies when applied to litigation.

However, as recognized by the EDRM in the 2011 publication "How the Information Governance Reference Model Complements ARMA International's Generally Accepted Recordkeeping Principles" (EDRM 2011), organizations can identify and mitigate these inefficiencies through careful planning.

Identify Proactive Solution Elements

Legal, RIM, and IT professionals have the ability to incrementally improve discovery response processes and save significant time and money by taking proactive steps to understand their organization and the litigation risks it faces. By focusing on the nexus between RIM, IT, and legal requirements, organizations can identify hurdles presented by existing processes and create a litigation response methodology that successfully uses existing infrastructure.

To identify the processes and systems required for an organization's litigation readiness plan, three factors should be considered: 1) litigation portfolio, 2) organizational structure, and 3) current discovery and records retention processes.

Litigation Portfolio

Perhaps the most important element of an effective, proactive litigation strategy is an understanding of past litigation. This generally may be achieved by studying three categories of information:

1. Information concerning cases with ongoing discovery or retention requirements per Rule 26 of the Federal Rules of Civil Procedure (FRCP)

2. General metrics for an organization's litigation portfolio, including the total number of cases and number of cases by practice area. This information is gathered for both active and historical litigation, usually for a period of five or 10 years.

3. Litigation budgets, including annual budget information for each practice area and average case expenditures overall and by practice area.

Such an analysis would bring to the organization's attention any responses that are immediately necessary and help predict future litigation. Additionally, each of the above plays a key role in performing cost/benefit analyses for changes to litigation response processes.

Organizational Structure

Organizational data required for litigation planning includes organizational charts, data maps, and basic information concerning organizational structure. In broad terms, this information is necessary to identify the types and locations of paper documents, ESI, and potential witnesses relevant to litigation.

Organizational charts plot business structure and, ideally, the individuals working within defined groups. Data maps outline the physical or virtual location of information. Ideally, a data map will include locations of hard copy documents, e-mail documents, locally stored files, root information and access requirements for network drives, web-based storage such as SharePoint[R]...