I recently gave a presentation about controlling e-discovery costs in employment litigation. The topic is especially relevant to employers because e-discovery costs and risks are often inherently one-sided. And there is nothing more frustrating for a company to settle a claim with little to no merit, simply because the cost of litigation - magnified by e-discovery costs - drives the decision-making process. But I digress.
As to the presentation, it was presented in collaboration with i-Sight (a leader in providing web-based case management software for corporate investigations) and, specifically Joe Gerard, Dawn Lomar, and Lindsay Khan. For any professionals that get the opportunity to work with Joe and his team, I highly recommend it: They are very easy to work with and do an exceptional job of making the presenter look good. But I digress yet again.
As to the seminar, it appeared to be well received based on the number of people who signed up and actually stayed on for the entire presentation.
During the seminar questions were asked of the attendees about the efforts of their organizations towards e-discovery planning and procedures. Two of those questions and corresponding responses are as follows:
- Does your organization have a e-discovery retention plan?
Disappointingly, only 24% of attendees responded that their organizations had an e-discovery retention plan. 76% of respondents.
- How confident are you that your company’s retention plan would survive judicial scrutiny?
The responses to this question should be very concerning for employers. Specifically, the majority of the responses fell in the range of "Not at all confident" to "Somewhat Confident." Only five attendees responded "Extremely Confident." It is, however, worth noting that no one responded "Who do I write the check to" (an actual choice).
The Take Away for Employers
The results of the above informal survey illustrate the two biggest contributors to e-discovery mistakes and sanctions arising out of those mistakes.
First, the key to avoiding mistakes in responding to e-discovery litigation challenges begins with actively creating sound e-discovery procedures before a lawsuit arises. Taking the results of the above survey at face value, such proactive planning is woefully deficient. In fact, employers you would expect to be on top of e-discovery issues are not (See The Importance of Timely Preserving Email in Employment Discrimination: Part I, discussing e-discovery missteps by a major law firm that actually advertised its "expertise" in advising clients on e-discovery).
Second, procedures do little good if a company is not ensuring that all personnel are aware of the importance of diligently following the procedures. But borrowing a concept from Colin Powell, part of this diligence means instilling in an organization's employees the concept of "never walking past a mistake." In other words, those responsible for carrying out an e-discovery litigation plan should be encouraged to share their views for improving the process.