It’s time to update (or create) your litigation readiness plan | Deploy
How confident are you that your business is prepared to deal with any litigation that comes your way? If your answer is less than “very confident”, you are not alone.
In his 2022 Prediction of world conflictslaw firm Baker McKenzie reported that 35% of respondents to their fifth annual survey expressed a high level of confidence in their litigation readiness. While 36% expressed a moderate level of confidence, 20% said they were “slightly confident” or had “low confidence” in their preparation.
Companies with higher annual revenues tend to respond that they are more confident in their readiness, Baker McKenzie noted.
The Role of a Litigation Readiness Plan
Litigation preparedness planning informs an organization how it will respond in the event that it reasonably anticipates litigation.
No two companies are alike in their current needs, technology, litigation history and litigation outlook. This means that litigation readiness plans are unique to each company that develops them.
Preparing a litigation readiness plan has several notable benefits:
- it puts your business in a better position to determine whether to settle or litigate claims;
- reduces stress and litigation costs; and
- prevents loss of data, loss of time and loss of tactical advantage.
Think your business is too small to have a plan in place? Consider another benefit of planning for litigation readiness: it can make your business more attractive to investors. Companies that have documented litigation preparedness plans have a lower overall risk profile, which can help boost their market appeal.
How to Create a Litigation Readiness Plan
With all the benefits associated with litigation readiness plans, it’s easy to see why they’re so vital to an organization. If you don’t have one, it’s not too late to develop one. Litigation readiness plans take thought and effort to prepare, but the work pays off.
Here’s how we recommend approaching planning.
1. Develop a data map
In its most basic form, a data map is a concept map that identifies where your company’s data, also known as electronically stored information, or ESI, resides.
The importance of knowing where your data is stored and being able to access it quickly in the event of a dispute cannot be underestimated. If you don’t know where your data is or who owns it, it may be difficult, if not impossible, to issue a legal hold preserving it for discovery. Plus, knowing where your data is helps you produce it efficiently and reduce eDiscovery costs.
At Array, we recommend that data maps not only include the location of the data, but also indicate who is responsible for maintaining the data inside and outside the company, and where the data is backed up. , if backups are made.
2. Determine your legal hold triggers
Under federal civil procedure rules, a company’s obligation to preserve data begins when it reasonably anticipates litigation. If that sounds vague, that’s because it is: the reasonable expectation of litigation can vary widely from company to company and situation to situation.
Some in-house attorneys rely on their judgment and intuition to determine whether to begin preserving data for potential litigation, but there are pitfalls to this approach, including the possibility of not preserving data as soon as possible. it would have to.
Rather than taking the “I’ll know when I see it” approach, the in-house lawyer should focus on identifying triggers for legal suspension based on their team’s perspective and historical business needs. .
These triggers may include when it becomes clear that the business can no longer settle a claim or incident similar to a recent prior litigation trigger.
Proactively defining your company’s litigation suspension triggers is protective in the long run, as it can provide documentation of company policies and protocols. Having such documentation protects against naysayers who argue that your company should have started keeping data sooner.
3. Talk with other departments
Creating a litigation preparedness plan should extend beyond your company’s legal department to include stakeholders from departments across the business, including human resources, compliance, information technology , archives, communications and management teams.
In-house counsel should discuss with their company peers their unique litigation risks and how the organization plans to respond to litigation.
The commitment of HR is particularly important, because HR disputes dominate business litigation and can be particularly costly to settle. Working with HR before a dispute arises to refine dispute resolution workflows and determine when preservation should be triggered can help reduce litigation costs.
Similarly, coordinating litigation readiness with your company’s IT function is invaluable when it comes to accessing and retaining data.
Don’t make assumptions about your IT department’s ability to capture information or its readiness to do so; Part of developing your litigation readiness plan includes defining their role, knowing their abilities, and training them so they are prepared to respond to a legal hold.
Coordinating with IT beforehand can also help you avoid the tendency to collect too much data with the intention of filtering it out later, which can be costly.
Working closely with IT is also crucial to being prepared to preserve data when changing IT systems or adopting new technologies as a business. Changes in technology can quickly make old plans obsolete.
4. Develop workflows and document their use
The next step is to develop workflows for handling legal holds.
After defining your legal suspension triggers, you can move on to drafting a legal suspension notice that will serve as a notification to the people and departments in your company that they need to preserve ESI in anticipation of litigation.
Once your internal team believes a dispute will arise, they should send the notice to the appropriate people as well as IT, track employee acknowledgments and answer their questions, strive to preserve the ESI subject to the Litigation Hold, follow up with data custodians to periodically remind them of the hold, verify compliance, and potentially lift the Litigation Hold.
Once developed, train staff in workflows and ensure they adhere to the processes defined in the plan and document their work. Consistent adherence to the plan will help defend your organization in court, should an adversary challenge your ESI preservation decisions. If employees regularly deviate from documented policies, it can create a risk for your business.
5. Create and train on ESI protocols
Finally, we recommend that, as part of your litigation preparedness planning, you develop ESI protocols and workflows and train employees on them.
Frequently, we see companies respond to discovery production requests by extracting data without considering the ESI or the specific needs of the discovery request. To meet the request, the data may need to include certain metadata fields or be organized in a particular way, for example.
Without a workflow, randomly pulling data can be a waste of time for in-house legal teams if they later realize they didn’t complete the job properly and now need to redo it. No one wants to end up in the position where you did the work, but it wasn’t completed the way it should have been.
Updating your litigation readiness plan
If you have a litigation readiness plan in place, but haven’t updated it recently, there’s no better time than now to consider reviewing it to make sure it still meets the needs of your organization.
With ever-changing technology and workplace disruption caused by the COVID-19 pandemic, it’s worth reconsidering your plan in light of how employees are currently working, whether that’s working remotely. or using apps for routine internal communications like Slack and Microsoft Teams.
There is no hard and fast rule as to when your organization should revamp its litigation readiness plan. We recommend that you review your plans quarterly to ensure the plan language is up to date and reflects the technology your business currently uses.
That doesn’t mean you have to change your entire plan often, but things like your data card might need updating as new technology comes online.
Reviewing the plan on a quarterly basis is also useful for maintaining your company’s hot list – a list of employees in your legal department whose communications are privileged and should not be released to adverse parties.
Don’t go it alone
Feeling overwhelmed by the litigation readiness planning process? eDiscovery vendors can be an invaluable source of information when preparing your litigation response plans. Not only do they provide consulting services, like helping you put together your data maps and keep them up to date, but they also frequently provide technology solutions that can help you identify potential disputes early on.
For example, Array offers a solution that can scan company emails for text in real-time, triggering internal red flags for issues such as sexual harassment.
eDiscovery vendors have seen the good, the bad, and the worst in litigation and can provide guidance for customers to avoid common pitfalls. Engaging an eDiscovery provider before a dispute arises can help build your confidence in your company’s ability to deal with whatever comes your way.