Records Management and E-discovery Experts: How to Successfully Avoid Trial By Avalanche

Records management policies and e-discovery experts were in the press again in “Beware Requests for E-Discovery: Trial by avalanche set to become norm for legal tacticians”, written by Julius Melnitzer and published on Wednesday, July 7, 2010 in the Legal Post section of the National Post. Of particular interest is that this article captures the view of representatives from both the Canadian and U.S. courts. Their shared view? To save costs and time in e-discovery, companies should develop and implement defensible records management policies and hire experienced e-discovery counsel.

Both Master Calum MacLeod, a case Master for the Ontario Superior Court of Justice in Ottawa, and Judge Frank Maas, a Magistrate Judge of the U.S. District Court for the Southern District of New York, not only unanimously endorsed records management policies, but strictly warned companies of the implications of not having them.

Master Calum MacLeod cautions that such companies will be hard pressed to argue that a discovery request is unreasonable when they have no idea in terms of time and cost what is required to retrieve the information sought by the opposing party. He states:

“Companies without a protocol for managing electronically stored information are in big trouble for a number of reasons. It will cost them a fortune to respond to e-discovery requests; they’re going to have a tough time finding what they need and it will be difficult for them to raise the proportionality argument when they have no idea what’s involved in retrieving the information.”

What are the courts looking for in terms of a sound, defensible policy?  In the words of Judge Maas, “judges are looking for consistency, internal logic and transparency, and in certain cases, a retrieval policy that ensures metadata is not altered.”

With respect to e-discovery expertise, Judge Maas believes that unsophisticated companies are at the greatest risk.  He warns that:

“The difficulty is that these companies try to deal with e-discovery themselves without retaining experienced counsel, and then they end up spending far more money to salvage the situation.”

The view of these experts is that pro-active work saves time and money in e-discovery.  It’s difficult to argue with that theory.  Is your company prepared?