Litigation is on the rise in the wake of COVID-19, and with it comes escalating costs. Electronic discovery is often the most expensive component of litigation. As we use more technology in our daily lives — computers, cell phones, email, smartwatches, smart home devices, etc. — the amount of data created is growing exponentially. When litigation strikes, that data now must be collected, reviewed and potentially produced.
COVID-19 has disrupted what we all knew as “business as usual.” Organizations are leaving no stone unturned when reevaluating business expenses and processes. This may finally be the time to address your organization’s litigation and e-discovery process — and could prove to be one of your biggest cost-savings opportunities.
The best time to prepare for a grand jury subpoena, search warrant or a document request is to proactively do so in advance. Do you have a plan for when law enforcement knocks on your door? If not, now’s the time to put one in place. Develop a one-page policy for how you want your employees to conduct business communications — limiting or eliminating instant messaging and texting as a way of doing business. Develop a records retention policy that is accessible and limits the amount of data you keep.
The following seven strategies will help you reduce litigation and e-discovery costs:
- Identify key personnel and locations of data and documents: Identify members of your HR, administrative, board and legal counsel and equip them with the knowledge and information they will need if a situation occurs. Put a system in place of where and how documents are stored and accessed, and how to obtain these documents remotely.
- Engage early: Do not let a subpoena or document request sit on your desk. Contact your legal counsel right away. It takes time to identify sources of potentially relevant documents and then collect and review the material. And, extensions are not always possible. It is also important to be part of the discovery process with your legal counsel. A collaborative process that begins on the front end will reduce expenses and liability throughout the process.
- Choose experienced litigation and e-discovery counsel: Consider what kind of legal counsel makes the most sense. Choosing experienced attorneys with a dedicated e-discovery team will keep the knowledge centralized, which is more efficient. Also, decide upfront with your legal counsel if the case is a “bet the company case,” or if there are alternatives to resolving the case.
- Narrow your scope: Contrary to popular belief, you don’t need to look under every rock. Understand your risks and develop a strategy to focus only on the necessary documents and evidence. Define your business goals in the beginning and work backward from there.
- Leverage technology: Speak with your counsel early about ways to use technology, like technology-assisted review, or TAR, to reduce costs. Warner regularly uses TAR to quickly and efficiently identify likely relevant documents, reducing the number of documents that need to be reviewed by the e-discovery attorneys. Because the cost-savings benefit of predictive coding comes from the dramatic reduction in the number of documents that need to be reviewed, these savings can be substantial.
- Meet with your counsel after the case is resolved: It is often true that after a case is resolved, no one wants to see their attorney again. However, you could miss a big opportunity to conduct a “lessons learned” evaluation and uncover ways to cut costs going forward. This is an incredible opportunity and can end up saving you a lot of money.
Scott Carvo, Madelaine Lane and Janet Ramsey are partners and experienced litigators with Warner Norcross + Judd LLP. You can reach them at email@example.com, firstname.lastname@example.org or email@example.com.