Posted In: Litigation & Litigation & Information Management
Business Litigation Advisory: Litigation Management – Avoiding Headaches with Early Planning and Defensible Protocols
on August 3, 2021
Litigation management is often perceived as an eDiscovery service, involving document collection and review. While that is one component of litigation management, effective litigation management involves a more comprehensive approach focused on managing documents and data before, during, and after litigation. Having procedures and strategies in place before litigation can help your business save time and money and potentially avoid discovery pitfalls during litigation.
Pre-litigation: Before litigation begins or is even anticipated, having procedures in place will assist an organization in gathering and collecting potentially responsive information when litigation occurs. A comprehensive records retention policy will ensure that certain business records are maintained while also ensuring that an organization is dispositioning data that no longer serves a business purpose or is not required to be kept for other purposes, such as litigation or regulatory requirements. An effective records retention policy will save time and money during litigation because an organization: (1) will know what data is available; (2) will not have unnecessary data that needs to be culled through and reviewed; and (3) will be better able to identify what data is potentially responsive and what data should be put on legal hold.
Pre-litigation litigation management also involves determining whether and when the duty to preserve is triggered and the types of data that should be preserved. Generally, the duty to preserve is triggered when litigation is reasonably anticipated. While that seems relatively straightforward, determining whether and when litigation is reasonably anticipated is often a nuanced and fact-intensive inquiry focused on many factors, including prior litigation history and the nature of the dispute. Waiting until a lawsuit is filed can, in some instances, be too late.
During Litigation: The discovery phase of litigation is often one of the most expensive phases of litigation. An organization can quickly become overwhelmed with gathering and reviewing volumes of potentially responsive data and responding to discovery while also trying to protect confidential, trade secret, or privileged information. Developing a defensible discovery strategy early in a case allows an organization to focus its information-gathering activities, reduces the likelihood that time and money will be wasted collecting unneeded information, and ensures its information is adequately protected. While potentially more time-intensive on the front end, developing a discovery strategy early in a case can save significant time and expense down the road and avoid discovery pitfalls such as inadvertent disclosures, motions to compel, and other discovery disputes. A discovery strategy should, at a minimum, carefully evaluate relevant topics, identify necessary custodians, data sources, and search terms, and develop review and production protocols to ensure potentially responsive data, including confidential trade secret, and privileged information, is handled in a consistent and defensible manner.
After Litigation: At the conclusion of litigation, an organization should ensure that any requirements related to confidential and trade secret information are enforced and complied with to protect an organization’s information. Additionally, legal holds should be reviewed and released as necessary and normal records retention policies that were suspended as a result of the litigation are resumed.
Brouse McDowell’s litigation management team can assist your organization in developing procedures and strategies to ensure efficient document and data management using our knowledge and experience to further your litigation goals and minimize your risk of discovery-related sanctions.
This blog is intended to provide information generally and to identify general legal requirements. It is not intended as a form of, or as a substitute for legal advice. Such advice should always come from in-house or retained counsel. Moreover, if this Blog in any way seems to contradict advice of counsel, counsel's opinion should control over anything written herein. No attorney client relationship is created or implied by this Blog. © 2024 Brouse McDowell. All rights reserved.
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