In the wake of COVID-19, litigation is on the rise, and with that, escalating costs. Electronic discovery (“eDiscovery”) is often the most expensive component of litigation. As we use more technology in our daily lives – computers, cell phones, email, smart watches, smart home devices, etc., the amount of data we are creating is growing exponentially. When litigation strikes, that data now must be collected, reviewed and potentially produced.
COVID-19 has disrupted what we all knew as “business as usual.” Organizations are leaving no stone unturned when reevaluating business expenses and processes. This may finally be the time to address your organization’s litigation and eDiscovery process – and could prove to be one of your biggest cost-savings opportunities.
So what are some key strategies to cutting costs in litigation and more specifically, eDiscovery? Warner Norcross + Judd attorneys Janet Ramsey, Madelaine Lane and Scott Carvo offered cost savings strategies in a recent webinar titled, “Strategies for Reducing Litigation Spend During COVID-19.” Here are some of their key strategies for reducing litigation and eDiscovery costs:
- Have a Plan: The best time to prepare for a grand jury subpoena, search warrant or a document request is to proactively prepare in advance. Do you have a plan for when law enforcement knocks on your door? If not, it is time to put one in place. Develop a one-page policy for how you want your employees to conduct business communications – limiting or eliminating instant messaging and texting as a way of doing business. Develop a records retention policy that is accessible and limits the amount of data you keep.
- Identify Key Personnel and the Locations of your Data and Documents: Identify members of your HR, administrative, board and legal counsel and equip them with the knowledge and information they need if a situation occurs. Put a system in place of where and how documents are stored and accessed, and how to obtain these documents remotely.
- Engage Early: Do not let a subpoena or document request sit on your desk. Contact your legal counsel right away. It takes time to identify sources of potentially relevant documents and then collect and review the material. And, extensions are not always possible. It is also important to be part of the discovery process with your legal counsel. A collaborative process that begins on the front end will reduce expenses and liability throughout the process.
- Choose Experienced Litigation and eDiscovery Counsel: Consider what kind of legal counsel makes the most sense. Choosing experienced attorneys with a dedicated eDiscovery team will keep the knowledge centralized, which is more efficient. Also, decide up front with your legal counsel if the case is a “bet the company case,” or if there are alternatives to resolving the case.
- Narrow Your Scope: Contrary to popular belief, you don’t need to look under every rock. Understand your risks and develop a strategy to focus only on the necessary documents and evidence. Define your business goals in the beginning and work backwards from there.
- Leverage Technology: Speak with your counsel early about ways to use technology, like technology assisted review (TAR), to reduce costs. Warner regularly uses TAR to quickly and efficiently identify likely relevant documents, reducing the number of documents that need to be reviewed by the eDiscovery attorneys. Because the cost-savings benefit of predictive coding comes from the dramatic reduction in the number of documents that need to be reviewed, these savings can be substantial.
- Meet with Your Counsel after the Case is Resolved: It is true that after a case is resolved, no one wants to see their attorney again. However, you could miss a big opportunity to conduct a “lessons learned” evaluation and uncover ways to cut costs going forward. This is an incredible opportunity and can end up saving you a lot of money.
Warner’s Data Analytics and eDiscovery Practice Group is one of the largest in the state of Michigan, with 23 attorneys who focus on pre-litigation and litigation strategies, including 10 full-time, experienced eDiscovery project managers and staff attorneys with well-established protocols and practices in all aspects of data review, production and quality control. Warner’s project management and review group members are fully integrated with the client’s trial team and in-house counsel via video conference calls and a web-based dashboard with advanced metrics for each project.