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.
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,”
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.
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
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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