Among large corporations that are serial litigants, there is growing recognition of the proactive need to implement consistent and reproducible e-discovery systems in their organization before-not after-they face significant e-discovery obligations in litigation. While the commitment is significant in terms of the time and effort required to implement and maintain such e-discovery systems, the investment of resources quickly pays off in the form of litigation efficiencies and reduced attorneys' fees and vendor costs down the road.
The adoption of such an internal e-discovery system need not be a great burden for other organizations whose litigation needs are less immediate. Even small to midsize businesses that infrequently face litigation and e-discovery demands can benefit from implementing a proactive, e-discovery plan appropriate to their needs. Even some forethought is better than none. At a minimum, an effective e-discovery system should:
1. Define the company's method for initiating and communicating litigation holds,
2. Establish procedures for preserving potentially relevant electronically stored information (ESI), such as suspending automatic e-mail deletion when litigation becomes reasonably anticipated,
3. Describe systems and sources of data within the organization (in more detailed format, sometimes referred to as a "data map"), and
4. Identify responsibility within the organization (including the respective roles of the legal department and IT) for satisfying e-discovery responsibilities when they arise.
A company's existing outside counsel and consultants will often assist in-house staff with some of this work at no cost (or reduced cost). There is much to be gained by partnering with outside e-discovery practitioners who can apply their experience and knowledge in assessing e-discovery needs and defining the appropriate systems and business approaches required to address those needs.