Litigation Readiness
from FMDC

Improving your ability to better control litigation costs with advanced preparation.

The recent (December 2006) changes to the FRCP Rule have made it necessary for all responsible organizations to reassess the ways in which they handle their electronically stored information (ESI). In many cases this has caused companies to scramble, driving unnecessary hardware and software storage purchases and adding unnecessary expense. The reality is, true litigation readiness is more than just data in storage and may or may not require additional hardware or software products. The Litigation Readiness course from FMDC deploys an enterprise-wide approach which in addition to giving you the information necessary to prepare your ESI, will also educate you to develop the practices that surround your ESI.

Prepare Your People
To start, it is people preparation, particularly IT people. Comments from the Advisory Committee on Federal Rules as well as developers of state guidelines for state rules both discuss the central role that IT professionals will play and the significance of that role. IT people will be called upon to explain the IT environment, discuss the location of potentially relevant information, describe the IT systems that were operative at the time of the matter in question and to provide support for discovery responses. They will be called upon to explain why certain ESI is inaccessible and possibly defend that view. If they do not prevail, or if the opposing party convinces the court that even though it is inaccessible, it is relevant and material to the matter at hand, IT personnel will be called upon to make that information accessible. A component of FMDC's Litigation Readiness course includes getting your IT personnel ready, but it does not stop there.

Prepare Your Environment
ESI does not live in a vacuum. It is surrounded by the policies, procedures and practices of your company. The integrity and evidentiary value of your ESI depends on the integrity of your environment. In order to ensure your evidence is adequate in court, policies, procedure, practices and proof systems must be documented and followed consistently. This is particularly true when it comes to the end-of-life destruction of your data. The ESI does not require you to keep data indefinitely unless it is associated with an active case. Companies that manage their data carefully and destroy records according to written policy are well within their rights. Until, that is, the data is relevant to a current or contemplated case, at which time it must be kept for at least for the duration of the case.

Prepare for Litigation
We do not always know which records will be required in a case. But we do know some information that will be required in every case. With that knowledge, we can anticipate the requirement and prepare it in advance, once, and then use the same information again and again. Moreover, this information can be gathered and organized without panic and then maintained going forward insuring it is always current.

Prepare Your Records for Retrieval
Many companies have systems that maximize the cost and burden of organizing records that would be seen by the courts as information used in the ordinary course of business. Too many companies have addressed the retention of these records in ways that make them difficult to access. Further, they also often fail to meet regulatory retention requirements or align with written company policy. Certain company records, such as e-mail and their attachments, will regularly be the target of discovery. It is to the company's advantage to organize these records in ways that they can be examined quickly at the earliest sign of litigation to determine what the situation might be.

Litigation Readiness is the result of carefully taken steps that will relieve the burden and reduce the costs.