A roadmap to litigation readiness: RIM staff help navigate the way.

• Author: Phillips, John T.
• Position: LEGAL WATCH - Records and information management

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Despite the complexities of challenges inherent in any dispute that is legally contentious, the fact that records will need to be produced from varied and potentially untrustworthy sources makes the litigation experience all the more dangerous. Records and information management professionals play an important role in making it less so.

Litigation is a fact of life for many organizations in today's complex business world. Increasing competiveness in changing economies, fast moving corporate acquisitions, global marketing strategies, challenging product regulatory requirements, and rapidly evolving laws can create contentious legal hurdles for business, governments, and individuals.

Plotting the Course: Focus on Preparation

In this environment, there has been much discussion about the need to apply records holds rigorously, the importance of planning for document discovery, and the recent implications of revisions to the Federal Rules of Civil Procedure (FRCP). However, while there is widespread respect for the Electronic Discovery Reference Model (EDRM) process rationales and the growing role of data forensics in evaluating evidence quality and relevance, there are no universally accepted professional expectations regarding litigation readiness best practices or goals.

Guidance on managing information varies drastically among professional organizations, and each litigation challenge differs due to varying parties, claims, and legal environments. So for many reasons, attorneys, litigants, corporate records managers, and legal industry consultants have varying approaches to best practices regarding litigation readiness and associated records and information management (RIM) is sues.

In all legal system engagements, the need for document preservation and production is extremely important, while the respective information management and planning responsibilities of the client and its legal counsel can get confusing. In many cases, clients may not have well-planned and comprehensive RIM programs with the usually expected policies, procedures, retention schedule, records inventory, file plan, or documented legal holds processes.

Each law firm and its attorneys will also have different approaches to preparing for litigation. Concepts, such as information governance (IG), records identification, data preservation, and e-discovery procedures, may be new to some attorneys or their clients.

For this reason, it is very advantageous for legal counsel and their clients to communicate clearly about the need for records identification, preservation, and production during early case assessment, ongoing litigation, and post-litigation activities. These needs become extremely critical in serial litigation or when adverse court rulings indicate the possibility of appeals or continuing legal system engagement.

For these reasons, RIM professionals working for clients of law firms must ensure that litigation readiness activities are addressed thoroughly and professionally when facing litigation. And, there should be a clear understanding of the appropriate roles of attorneys, outsourced legal services, and the client, including the client's RIM staff or their...