Litigation readiness. What does that mean? Sure, I can state clearly that it means you’re ready to respond to a litigation hold; maybe “prepared” would be a better word. What about everything that follows? How ready are you?
I break it up into five possible scenarios:
- No lawsuit in sight, but you want to be ready for the future
- Plaintiff – you sue someone
- Defendant – someone sues you
- Internal – Plaintiff and Defendant are within the same organization (e.g. employee suing employer or vice versa)
- Third Party – you’re drawn into a complaint between other parties (e.g. impleader)
How do you get the conversation started when there are so many reasons to put it off?
- “I don’t know what the big deal about ESI is.”
- “We don’t have it in the budget.”
- “We don’t have time to deal with it right now – try again next cycle.”
- “We’ll deal with it if and when a problem arises.”
Fortunately, most of us recognize that if one waits until an issue arises, it’s already too late. Receiving a subpoena is not an ideal time to find out that you can’t comply. It’s also a short-sighted view. You may need your own ESI to bolster your case, no matter what side of the action you’re sitting on. Perhaps that’s the argument to make when attempting to motivate management to act.
If that doesn’t work, there’s always the fact that trying to do anything in a piecemeal fashion results in much higher cost. And if that doesn’t work, management needs to understand that they have duties to uphold – and it’s very easy to violate them when you’re not aware of the rules (oh, and the court won’t necessarily absolve you for being ignorant of the rules – there is a presumed level of competence).
Litigation isn’t just segregated to a small portion of a company. It requires activating resources from all over the enterprise; HR, IT, Legal (internal and external), Management, etc. Ever tried getting all of these parties in a room for a meeting? I have. Depending on what everyone has on their plate at that particular moment in time, it can take weeks!
Do you really want to be dealing with this at the last minute? What about e-discovery software? What
about storage? Who will review the ESI? What about your adversary? Do you have the expertise to know that they’re complying with your ESI requests in good faith? Who will oversee all of this?
The problem with this discipline is that it’s hard to know what questions to ask unless everyone who has a hand in the process is in the same room. It’s like smashing the atom. One question generates a whole host of other questions and before you know it, you’ve opened Pandora’s Box.
Start with question #1 – who belongs in the room?
If you have policies in place, everyone knows their responsibilities. When a litigation hold is issued, duties are already pre-defined. This is critical, because when they say “hold”, they mean “hold“.