How to Comply With E-Discovery Rules Before You're Hit With a Lawsuit

Your corporate e-mail is now choice evidence when—not if—your company is sued. Here are five steps to help you stay on the right side of the law.

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In addition, make e-discovery compliance part of your due diligence if you are thinking about buying a company. Look at the e-mail storage plan of any potential acquisition to make sure you will be able to produce all electronic data without a glitch if there is a lawsuit down the line.

4. Train your staff—and end users.

Make sure everyone in the company knows what materials to keep and what to discard. "It is reasonable for a corporation to rely on employees to save documents that might be in litigation," says Howrey's Rosenthal.

If you have a personal e-mail policy in your office, make sure employees know what kind of messages should never be sent from an office computer. It may be OK to talk about your dog or what's for dinner. But a disparaging remark about a person or another company may come back to haunt you.

All e-mail, both personal and corporate, creates a potential litigation risk, says Patrick Oot, Verizon's director of electronic discovery. "Employees should realize the lack of privacy in e-mail. If executives imagine their e-mails blown up on a highway billboard, that's exactly how it looks at trial," Oot says. He offers a general rule: "Never put anything in an e-mail you wouldn't want your mother to read."

5. Invest in the right document search and retrieval technology for your company.

Get used to the idea that supporting e-discovery is a necessary expense. You'll pay a premium if you wait until a lawsuit hits before you prepare to comply.

There are e-discovery tools designed to meet the needs of any company, from startups to large multinationals. How much you spend has a lot to do with how much litigation you usually face. You also have a choice whether to outsource instead of deploying the technology yourself. But a basic system includes search and retrieval software as well as archiving capabilities, says Zazzera.

E-Discovery Tools

There's a burgeoning supply of e-discovery products and services. Here are a few examples.

Attenex

provides tools for law firms to standardize e-discovery procedures.

Zantaz, a subsidiary of Autonomy, supports discovery and review processes without requiring a reviewer to code or tag documents.

Digital Mountain provides tools for collecting, processing and analyzing electronic data for law firms.

Encase is a suite of products by Guidance Software to search and retrieve electronic data. It can find data across a network from a centralized location.

First Advantage provides litigation support services including e-discovery and data recovery services.

Stratify products include the Stratify Legal Discovery Service, which provides a search tool that can handle 300 documents an hour.

The cost of these tools varies depending on size and sophistication of the system. Rosenthal says it may cost $1 million to $2.5 million for a company to prepare for e-discovery, depending on the tools it needs. Zazzera says a large company with 10,000 employees might spend $500,000 for "entry-level" e-discovery tools that include basic e-mail retention and retrieval capabilities. "When you reach beyond e-mail, the number can quickly grow beyond $1 million," he adds.

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