Hannah Petrie, Legal Counsel for eBay Australia & New Zealand, gives a survival guide for any organisation preparing for the risk of a potential ediscovery case.

ediscovery poses a risk to any business that stores large volumes of data. This covers pretty much every business today. Tell that to a lawyer and they’ll agree with you. Mention ediscovery to anyone else in the business and they’ll start gazing off into space and mumbling excuses about other appointments.

ediscovery can be very expensive. Start talking about spending six figures or more and you can probably get the business’s attention. Poorly managed ediscovery increases cost, time and risk in litigation. Your business as a whole must own the risk of litigation and bear its cost. Managing data and ediscovery is not just the lawyers’ job.

That’s often easier said than done. Typically there is not enough interaction between legal, IT and management teams about ediscovery. However there are some points you can raise to help your business see the benefits to being proactive about ediscovery.

Preparing your business in advance is critical to minimising the cost and risk involved in the ediscovery process.

External lawyers and discovery vendors are very expensive. Doing more work internally and narrowing the scope of their responsibilities can drastically reduce your costs.

Hourly billing to your law firm just rewards inefficiency. The business should be prepared to negotiate fixed fees on the work it does brief out.

External vendors are unfamiliar with your business. You’ll need to factor in extra time and money on briefing them and correcting any errors.

External lawyers may also ‘err on the side of caution’ and include more data in their search than you might otherwise have produced for the court. Nobody likes their emails getting scrutinised so this can be a persuasive point.

Getting ediscovery wrong can have serious consequences for your business, including sanctions or even jeopardising your prospects of success in litigation. A little effort up front can reap big rewards.Once you’ve convinced the business that ediscovery is worth thinking about sooner rather than later, the first step should be to establish an ediscovery team.

That’s an internal, multidisciplinary team with its aim to facilitate processes to streamline your business’s production of data in litigation or regulatory enquiries.

Organisations with an existing ediscovery team in place will be able to produce material to a court more efficiently, reducing the cost of compliance and ensuring it fully complies with discovery orders without making mistakes.

One of the team’s first jobs will be to identify internal and external roles for steps in the ediscovery process.

Depending on the size of your company and how regularly you litigate, many tasks can be completed in-house if you’ve got the resources. It’s worthwhile getting external lawyers to take a look through your documents before you produce them though.

Your team will need to establish how the various jobs of the ediscovery process are allocated between in-house IT and external legal or litigation support firms. The tasks you might consider outsourcing include data collection, culling, review and production.

The three key internal stakeholders are legal, IT and management. Each of these should be represented in your ediscovery team. The legal team will be responsible for preparing a data retention policy and litigation hold policy. These go hand in hand. A good litigation hold policy and procedure will help your business defend a more aggressive document destruction policy.

Internal IT is likely to be allocated the task of managing the data retention and litigation holds policies, identifying how and where electronic data is stored within the business. They may also assist with data collection and culling. A manager is your line of communication with your executive decision-makers, and in many cases the one who approves the budget.

Tailor the team to the size and nature of your business. A large multinational might benefit from having a team charter, setting down each member’s mandate and goals. It might even build its own proprietary software to help manage data extraction and production.

A smaller business may find an informal team more appropriate. Whatever you choose, the key point is to get the business, and not just the lawyers, thinking about ediscovery early. Having appropriate policies and procedures in place, along with a team who are ready to execute them, will be invaluable when it’s time to provide ediscovery.

From the latest edition of Image & Data Manager magazine, out now. To secure your copy, subscribe now at www.idm.net.au.