Preparation is the Best Defense When Litigation Emerges and Getting it Wrong Costs Plenty

Recently I had an opportunity to attend an interesting presentation by John Mallery of BKD, LLP that was given to a group of IT industry professionals regarding how to protect trade secrets and the use of forensics to identify wrongdoing. A large part of his speech focused on eDiscovery and FRCP and how companies must understand the importance of having an eDiscovery strategy.  But, the part that really struck home with me was when the presenter asked the crowd of around 60 or so participants who knew what eDiscovery and FRCP was. Stunningly, only three people, including myself, raised their hands. Now this is by no means a scientific measurement of companies and their knowledge of eDiscovery, but it was surprising to me none the less and, unfortunately, it is probably closer to reality than most of us would like to admit. 

As companies are faced with lawsuits involving eDiscovery one thing that is quickly discovered is a lawsuit today is much different than in the past. With the advent of electronic records and the associated mass quantity of records being generated, opportunities that could be helpful or, conversely, detrimental to a case can be identified. In either scenario costs are involved, and only through understanding how to approach mass volumes of electronic documents and how to retrieve the proper information can informed decisions to be made that best protect a company. Using this information to build a proper defense is vital and there is no substitution to being prepared and understanding the evidence against you.

Parsing through large amounts of ESI (electronically stored information) is only part of the cost company's face; legal fees, lost time and productivity as well as damage to a company's reputation should also be considered. Due to these factors when considering going to trial a look at the totality of the circumstances is warranted.  Some areas to consider are:

• How much is the lawsuit worth?
• How long of a trial is the company facing?
• After an honest assessment of the evidence what are the chances of winning a trial?
• Could there be unfavorable publicity?

Once these questions are answered, and as hard as it might be to face, sometimes a more cost effective strategy is to settle the lawsuit. A recent study of civil lawsuits showed the cost of getting it wrong as to when to go to trial was $1.1 million dollars for defendants.  This cost was directly attributable to making a mistake or a miscalculation on when to go to trial versus when to settle. Understanding the risks associated with going to trial is key to making the right decision, and evidence contained in electronic information such as e-mail plays a huge role in this decision making process.

Products such as LookingGlass by Estorian provide the information you need to make an informed eDiscovery decision. LookingGlass gives you the ability to:

• Provides necessary legal retention and management of e-mail - By managing e-mail archives with LookingGlass companies are better able to search, retrieve and examine all e-mails relevant to an eDiscovery request. 
• Reduce pre-case assessment and review costs - LookingGlass reduces large volumes of e-mail into relevant information based on a companies search criteria. This provides counsel relevant information in a timely manner so as to better facilitate decision making. By only sending relevant data to outside counsel or providers, an accelerated review process is possible and costs are reduced.
• Ensures integrity and authenticity of discoverable data - LookingGlass archives all e-mail data to include all metadata. Capturing header information and metadata ensures authenticity of the communication. 

After reviewing the evidence and information in an eDiscovery request the reality is something wrong might have occurred and at that point a company has a decision to make as to whether to settle or defend the case. Without having the ability to retrieve and review documents such as e-mail, companies are putting themselves at a severe disadvantage in terms of making an informed decision. 

It makes sense that companies position themselves to reduce risks by enabling the archiving and searching of electronic information such as e-mail.  Providing counsel the ability to make informed decisions, and, if necessary, settle a lawsuit is necessary to protecting a company's assets. Without a clear picture of the evidence, companies run the risk of making the wrong decision and thus incurring a much larger cost than if they had the right information and could make the right decision at the outset.