Originally from Electronic Disclosure in International Arbitration

Much has been written about the burden, costs, and risks of the disclosure of electronic documents but there has been very little focus on how to make it a proactive part of legal strategy. Electronic disclosure has come to represent all that is wrong with litigation in the United States. It has been accused of encouraging frivolous suits and coercing unwarranted settlements because of the inordinate costs and risks surrounding it.

Unfortunately, all of this negativity is not simply shouting at the wind. Corporations face the daunting task of controlling and harnessing millions and millions of emails, hundreds if not thousands of databases, countless backup tapes and what seems like an endless number of PCs, laptops, handheld devices, flash drives, and servers. Quite simply, the volume is overwhelming.

Corporations, however, do not have to accept the current state. With the right players, proper preparation and the right “playbook” corporations can reign in the costs, control the risks, and make electronic disclosure an asset, not a burden. The key to using electronic disclosure as an offensive weapon, or at least minimizing the burden when responding to requests defensively, is to limit or reduce the volume of data and to identify important documents quickly.

This paper outlines how to put together the right team, develop a process and choose the right tools for winning the case. Every matter requires strategic and tactical decisions along the way. Electronic disclosure is part of that decision-making, on both the defensive and offensive side.

PREPARE IN THE OFF-SEASON: BUILD THE RIGHT TEAM

Having the right team is essential to getting the best results possible. To do that, corporations should start by building an internal electronic disclosure (“e-disclosure”) team that includes representatives from legal, IT, compliance and records management. In-house lawyers are in the best position to drive an efficient e-disclosure process and they can no longer rely solely on outside counsel, on a case-by-case basis. To meet legal requirements, and to do so efficiently, it is beneficial to establish an internal team that is responsible for the process.