Litigation Readiness

With the amendments to the Federal Rules of Civil Procedure (FRCP), precedent-setting adverse sanctions against some of the largest corporations and growing regulatory requirements, the need to become 'litigation ready' has been like a large snowball, gaining mass and momentum. The indisputable need to become litigation ready has arrived, and the snowball continues to get bigger and faster as it heads down the mountain.

With the FRCP amendments, Dec. 1 has come and gone and guess what? Nothing has exploded. Since the amendments were billed as the legal industry's Y2K, all the lather and lament was almost anti-climatic. Does that mean that the amendments to the rules governing discovery are meaningless? Not at all. It simply means that Dec. 1 was an initial deadline for anxieties to manifest in real pain. The pragmatic implications of the amended FRCP are that courts and litigants will START to implement portions of the guidelines in new matters that arise and in current matters that have not yet encountered discovery.

Electronically Stored Information

What does all this mean for improving the business process of responding to discovery when compelled to produce Electronically Stored Information (ESI)? It means that there is never a bad time to get started on business process improvement, even if a company is in the midst of litigation. This process improvement needs to begin with assessment as you can't really know where you are going if you don't know where you are.

There are three approaches a litigation readiness assessment (LRA) can take:

Retrospective

Some corporations, when describing their 'as-is' discovery response process, use a most recent matter as the basis for their LRA responses. In some cases, the discussion specifically refers to 'who did what to whom' on that particular matter. This can be a very useful approach since the information is fresh in peoples' minds and there is likely some documentation, like actual letters of preservation or litigation hold notices, which can be called upon to illustrate actual practices. Furthermore the pain that was inevitably encountered during the process (or lack thereof) is real and tangible, so the assessment is not an academic, abstract exercise.

Abstract

This approach assumes that the company will be sued and compelled to produce ESI. This amounts to a mock electronic discovery response process. An LRA conducted in this mode can be valuable because participants can truly feel proactive rather than feel their actions will be viewed under a microscope or that they will be inadvertently (or deliberately) be made into scapegoats on a recent matter. They can take charge of the process without hesitation and without the threat of being judged by their colleagues.

Active

Tying an LRA to an active matter can be one of the most effective approaches. One very pragmatic reason is that it may be possible to pay for the LRA with matter-specific funds. This could be really important to the general counsel that may not have discretionary budgets. Additionally the recommendations of the assessment can be applied immediately to the existing matter and be used to support strategy and tactics with privilege applied.

In a real-case example, one corporation had asked its electronic discovery services provider to help it prepare for its Rule 26(f) 'meet and confer' conference, as well as help it complete a rational Form 35 submission for a particular 'bet-the-company' lawsuit. In addition, the client wanted to use the learning from the provider's work to help improve its overall process for electronic discovery response, independent of this particular matter. As the work commenced, the team was able to gather data on which data repositories were accessible, inaccessible and defensible; use the information to support the 26(f) preparations; and make a value judgment on the elegance (or lack thereof) of the company's processes. Another benefit of this approach was that it was easier to get resources from multiple disciplines to take the time to respond to the interviews and data gathering overtures, since this truly was a 'bet-the-company' lawsuit.

Conclusion

Ultimately, assessment is always a good idea. Corporations that take the time to understand exactly where they are can develop a baseline from which to target process improvements, prioritize more rationally what to work on first, and demonstrate to interested parties that they are truly making a good-faith effort to improve their processes. As the scenarios above illustrate, there is never a bad time to assess.

Prashant Dubey is Vice President and General Manager of Fios' Discovery Management Services consulting group. He has consulted with Fortune 250 corporations for more than 20 years on business process optimization, cost management and performance management.

With the amendments to the Federal Rules of Civil Procedure (FRCP), precedent-setting adverse sanctions against some of the largest corporations and growing regulatory requirements, the need to become 'litigation ready' has been like a large snowball, gaining mass and momentum. The indisputable need to become litigation ready has arrived, and the snowball continues to get bigger and faster as it heads down the mountain.

With the FRCP amendments, Dec. 1 has come and gone and guess what? Nothing has exploded. Since the amendments were billed as the legal industry's Y2K, all the lather and lament was almost anti-climatic. Does that mean that the amendments to the rules governing discovery are meaningless? Not at all. It simply means that Dec. 1 was an initial deadline for anxieties to manifest in real pain. The pragmatic implications of the amended FRCP are that courts and litigants will START to implement portions of the guidelines in new matters that arise and in current matters that have not yet encountered discovery.

Electronically Stored Information

What does all this mean for improving the business process of responding to discovery when compelled to produce Electronically Stored Information (ESI)? It means that there is never a bad time to get started on business process improvement, even if a company is in the midst of litigation. This process improvement needs to begin with assessment as you can't really know where you are going if you don't know where you are.

There are three approaches a litigation readiness assessment (LRA) can take:

Retrospective

Some corporations, when describing their 'as-is' discovery response process, use a most recent matter as the basis for their LRA responses. In some cases, the discussion specifically refers to 'who did what to whom' on that particular matter. This can be a very useful approach since the information is fresh in peoples' minds and there is likely some documentation, like actual letters of preservation or litigation hold notices, which can be called upon to illustrate actual practices. Furthermore the pain that was inevitably encountered during the process (or lack thereof) is real and tangible, so the assessment is not an academic, abstract exercise.

Abstract

This approach assumes that the company will be sued and compelled to produce ESI. This amounts to a mock electronic discovery response process. An LRA conducted in this mode can be valuable because participants can truly feel proactive rather than feel their actions will be viewed under a microscope or that they will be inadvertently (or deliberately) be made into scapegoats on a recent matter. They can take charge of the process without hesitation and without the threat of being judged by their colleagues.

Active

Tying an LRA to an active matter can be one of the most effective approaches. One very pragmatic reason is that it may be possible to pay for the LRA with matter-specific funds. This could be really important to the general counsel that may not have discretionary budgets. Additionally the recommendations of the assessment can be applied immediately to the existing matter and be used to support strategy and tactics with privilege applied.

In a real-case example, one corporation had asked its electronic discovery services provider to help it prepare for its Rule 26(f) 'meet and confer' conference, as well as help it complete a rational Form 35 submission for a particular 'bet-the-company' lawsuit. In addition, the client wanted to use the learning from the provider's work to help improve its overall process for electronic discovery response, independent of this particular matter. As the work commenced, the team was able to gather data on which data repositories were accessible, inaccessible and defensible; use the information to support the 26(f) preparations; and make a value judgment on the elegance (or lack thereof) of the company's processes. Another benefit of this approach was that it was easier to get resources from multiple disciplines to take the time to respond to the interviews and data gathering overtures, since this truly was a 'bet-the-company' lawsuit.

Conclusion

Ultimately, assessment is always a good idea. Corporations that take the time to understand exactly where they are can develop a baseline from which to target process improvements, prioritize more rationally what to work on first, and demonstrate to interested parties that they are truly making a good-faith effort to improve their processes. As the scenarios above illustrate, there is never a bad time to assess.

Prashant Dubey is Vice President and General Manager of Fios' Discovery Management Services consulting group. He has consulted with Fortune 250 corporations for more than 20 years on business process optimization, cost management and performance management.