eDiscovery lawyers like to say that a company’s first significant ediscovery matter will be their most expensive one. That’s because most companies don’t take the proactive steps that can minimize their exposure to ediscovery costs until they’ve had the pleasure of going through pain and expense of ediscovery. Healthcare companies, despite (i) operating in a hyperactive regulatory and litigation environment and (ii) themselves often extolling the benefits of preventive, proactive action, are no exception to this phenomenon. As an ediscovery lawyer, nothing frustrates me more. That’s because, by the time I’m engaged, it’s usually too late to take these simple, preparatory steps that can save significant amounts of money.
With that in mind, here are some steps that you or your clients can take now that will significantly lessen the expense of ediscovery down the road.
Implement a Record Retention Policy. Every year, the amount of data that a typical office worker receives or generates has gone up. At the same time, the cost of hard drives to store all this information has gone down. This has meant that a lot of companies have become the virtual equivalent of the television show “Hoarders.” But instead of just buying more storage space, companies should develop, implement, and enforce a Record Retention Policy that spells out exactly when documents can and should be deleted.
Keep a Catalogue of Historical Organizational Charts. When it comes time to identify the recipients of the legal hold, the most useful tool is a good organizational chart. In fact, courts have caught on to this, and have noted when counsel neglected to make use of organizational charts when analyzing discovery failures. It’s much easier to employ and update an organizational chart than use outside counsel to create the equivalent from scratch.
Maintain a Data Map. This is a document that shows, by custodian, all of the different places that electronically-stored information lives. It would show, for example, the various computers, network storage locations, handhelds, and cloud servers that the company utilizes for its business purposes. It would also note which of those sources are subject to automatic deletion protocols, so counsel can take swift action to make sure that data is not lost. With an organizational chart and data map in hand, counsel will be well-prepared to identify the location of data that must be preserved and produced.
Develop a Legal Hold Plan. Companies can streamline the time-sensitive process of implementing a legal hold by designing implementation and monitoring procedures on the front end. This would include template legal hold forms that can be quickly customized when the need arises.
As part of this process, I strongly recommend using a legal hold tool software program that will automate the distribution and tracking of legal holds. Since best practices require an affirmative acknowledgement from each recipient of the hold, you’ll save an absurd amount of time that would otherwise be spent on following up on the initial legal hold, to say nothing of the periodic reminders. At Arnall Golden Gregory, for example, we’ve partnered with a company that developed one of these tools to offer to our clients at no additional expense.
Account for Third-Parties and Cloud Providers. It’s rare that a company is in direct control of all its data. There are any number of places that a company’s data can live outside the company itself, such as the files of the company’s lawyers, accountants, insurers, and, increasingly, cloud providers. Make sure that you’ve taken these potential “other sources” of information into account when planning for preservation and production of data.
Once a preservation obligation exists—i.e., there is a reasonable basis to anticipate a lawsuit or government investigation—counsel will need to act quickly to implement a sound legal hold. And anything that exists when that preservation obligation attaches will need to be preserved. So it only makes sense to take preparatory steps now that will only save money down the road.
Take Steps Now to Prepare for eDiscovery to Save Money Later