The Lawyers Weekly - January 20, 2012

BUSINESS
CAREERS

Litigation-prone businesses stand to save money with each case if they both make themselves litigation-ready and work with discovery-savvy counsel.

On the latter point, Dominic Jaar brooks no debate. “In 2011? There is at least one email that is relevant to your litigation,” says KPMG’s national leader, information management and e-discovery.

The drive to control costs in companies that regularly litigate has led to a better understanding of litigation-preparedness best practices. Davis LLP partner Kelly Friedman insists that to meet “Kelly’s gold standard in litigation readiness,” a business must have two things: A records management policy implemented using automation; and a litigation readiness plan.

What types of documents are most frequently requested during discovery? According to the 2011 Information Retention and eDiscovery Survey from Symantec Corporation, the top six are: files and documents, database or application data, email, SharePoint files, social media, instant messaging and text.

LUIGI
BENETTON

How do you keep track of it all? Run your records management system according to GARP.

Published by the information management group ARMA International, GARP, or Generally Accepted Record-keeping Principles, offers an information management maturity model featuring five levels, in which level five is the gold standard.

Friedman outlined her gold standard when she spoke at a November ARMA event in Ottawa. One of her slides defined a records management system as one in which each record is automatically classified by the computer system, retained for the period of time determined by a well thought-out retention schedule and automatically destroyed when its value comes to an end, unless a legal hold has been triggered.

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Records management systems aren’t as widespread or as well-tuned as Susan Nickle would like. She figures the recession forced companies to shelve plans for systems.

But “if you’re a small company, it’s quick and cheap to do,” said the co-founder of Wortzman Nickle Professional Corporation. “If you don’t do this and you’re in a litigious environment, you’re just deferring these costs. They’ll just pop up in litigation.”

Litigation readiness plan

For many Canadian corporations, “every case is the first case all over again,” says Nickle.

It need not be that way. According to Friedman’s November ARMA presentation, litigation readiness plans enable organizations to proceed in a defensible manner with the preservation and collection of potentially relevant ESI ( electronic-ally-stored information) and enable outside counsel to represent accurately to judges and regulators the status of discovery in a matter.

Plans also allow for the flexibility to handle each case according to its nature. Perhaps most importantly, they make early case assessment easier and help companies swiftly figure out whether they have exposure. “If you know up front, you can settle quickly,” says Friedman.

Several key parts make up the foundations of litigation readiness plans.

Data map

Friedman says every plan needs a data
map that documents the company’s IT
infrastructure, shows where each type of
information is in terms of both the hard-
ware and software housing it and its
physical location, and explains how it can
be accessed and by whom.

Records management policies

Policies can pre-empt excessive discovery costs by stipulating guidelines for activities like document retention and destruction, email use, social media use and dealing with the data of departing employees.

Setting up a team ahead of time helps keep the number of people involved in discovery to a minimum, thus reducing the

See Discovery Page 30

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