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 Erin is an associate of Thoits, Love, Hershberger and McLean, specializing in employment law and related litigation. She can be reached at: (650) 327-4200 | Phone (650) 325-5572 | Fax emcdermit@thoits.com Employment Law Group: Jeffrey A. Snyder Erin L. McDermit Anne E. Senti-Willis Stephen C. Gerrish |
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E-Discovery Guide for Businesses, and the Executives and Human Resources Professionals that Run Them Over the past few years there have been numerous articles warning attorneys, corporate executives, and HR professionals to beware the pitfalls of electronic discovery. This is due largely to the fact that managing electronic discovery to comply with shifting expectations of the court system can be challenging while identifying, collecting, and producing electronic information is cost-prohibitive. This article covers a few of the basics that companies, executives and human resources professionals need to know, and gives pointers on tackling e-discovery before and during litigation. Although the costs of e-discovery can be high, there are ways to keep costs down. Companies must act proactively and institute policies before e-discovery urgently needs to be undertaken. Part of good preparation is having an understanding of who the important players are on your e-discovery team and being familiar with the natural steps in the e-discovery process before and after litigation is in full swing. For the corporate executive or HR professional, it can be very frustrating to have to suspend the company’s regular work to deal with urgent e-discovery demands and an imminent litigation threat. The more work the company does before the situation is urgent, the less costly and disruptive the emergency will be to its day-to-day business operations. The electronic discovery team will have three parts – the company liaison, the company’s attorney – whether in-house or outside counsel – and a technical computer expert. The technical expert may be the company’s IT professional, or it may be a vendor. Either way, it is possible that the computer technician may be called to testify in court at some later date, which makes his or her qualifications, defensible practices and ability to present information to a judge or jury important factors to consider when designating or hiring the technician. The Company’s attorney should be consulted prior to litigation as it formulates and implements a document retention policy. Company executives should also understand the company’s document management policies and know where all categories of documents are kept, whether they are backed-up, and for how long they are kept. For outside counsel, challenges arise prior to and during litigation when we must, on the one hand, ensure all data is being preserved by our corporate and executive clients, and, on the other, work with the computer technicians to identify, collect, and produce information. We must also take steps to ensure the opposing party is complying with their responsibilities related to the preservation and production of electronic information once litigation is anticipated. It is important to remember that attorneys are not qualified computer professionals or forensic technicians, and often lack the basic knowledge to ask the right questions. A tech-savvy client can sometimes provide technical guidance to the attorney, but many companies or smaller employers lack technical knowledge just as the attorney does. The company’s counsel should take an active role in examining the qualifications of the designated computer technician, and work to keep the technician’s costs down by obtaining several price quotes for forensic work and asking questions to uncover less expensive alternative procedures, depending on the issues involved in each particular case. When faced with litigation, whether an actual case or claim has been filed or not, it is crucial that corporate clients and their attorneys utilize the knowledge of their technology expert, and ask question after question until everyone on the team understands what information can be identified and collected, how to collect the electronic information in the most defensible and cost-effective manner, and then how to produce it to an adversary in the middle of an intense, fast-paced legal process. To summarize, it is essential that companies and the executives and human resources professionals that manage them: (1) understand their individual responsibilities related to document management and the expectations of the legal system; (2) set up simple document retention rules and disaster plans before disaster hits; and (3) then, once there is a threat of a lawsuit or administrative claim, quickly enact the disaster plan so the company can continue operating efficiently while complying with the expectations of the court. Company executives and HR professionals should:
Many larger companies have responded to the challenges of e-discovery by hiring inside e-discovery counsel or technology experts to reduce costs over time. If you don’t have this luxury, by following the guidelines above you may at least be able to get more control over the process earlier, and save costs you might otherwise be forced to incur. Erin L. McDermit Thoits, Love, Hershberger & McLean 285 Hamilton Avenue, Suite 300 Palo Alto, California 94301 Telephone: (650) 327-4200 Facsimile: (650) 325-5572 E-mail: emcdermit@thoits.com  Thoits,Love,Hershberger & McLean 285 Hamilton Avenue, Suite 300 Palo Alto, CA 94301 (650) 327-4200 | Phone (650) 325-5572 | Fax |
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