![]() because it was harmful to your case. If that happens, it can be extremely damaging to your case. During the lawsuit, any party can request discovery once the proper time has passed, which is generally 20 days after service of the lawsuit in state court and once the parties have completed their initial conference with the parties in federal court. One such discovery request is a request for the production and copying of documents. As noted above, both state and federal civil procedure allows a party to ask that the adverse party produce ESI. The request must set forth the category of documents sought and whether an inspection of a computer or other electronic storage devices is sought. Once such a demand is made, the real work starts. Hopefully, prior to the request, your company instituted a litigation hold. If so, then steps must be taken to determine the scope of what must be produced and how it will be recovered. For a small company, this may be easy as the amount of ESI is limited. For a larger company, this exercise may be one of the most costly parts of the lawsuit. That is because a protocol is often needed. Where there is a large volume of materials, this may require counsel (with the help of their e-discovery experts and the client) to determine how to best search for responsive documents. This may require the parties to agree to search terms or, if an agreement cannot be reached, court intervention. Once you have identified the ESI to be produced, the next step is getting it off electronic devices. Once that is done, it is necessary to have it reviewed to make sure that information that is privileged or otherwise protected from disclosure is not turned over. That generally requires review by your lawyers. Based on the volume of data to be reviewed, this can be yet another expensive proposition. of ESI ESI can be extremely high and it is unknown whether the cost of production the California Code of Civil Procedure provides ways to minimize or shift the cost of production. These include: opposing counsel to limit the scope of the discovery request; limit the scope of the discovery sought, known as a protective order; or, of producing the ESI to the opposing party. cost of production may be important. Thus, working in advance with your counsel, your ESI expert and internal IT professionals to determine the cost of production and alternatives to reduce expenses is important. Production confidential, privileged or otherwise protected documents are produced. Both state and federal laws anticipate that by permitting the "clawback" of inadvertently produced documents. As the name implies, a clawback is a request to return an inadvertently produced document. When this happens, the producing party must advise the opposing party of the inadvertent production and demand that the improperly produced document be returned. If the receiving party disputes that the document should be returned, the producing party can ask the court for an order for the return of the document(s). If the court finds a party unjustifiably refuses to return the documents or makes an unjustified request for the return of documents, the court may award fees to the prevailing party. ESI for various reasons: they believe it may prevent adverse information from being provided, the documents were lost due to the destruction or failure of the device storing it, the documents were through sheer carelessness either from improperly searching for the documents (i.e., use of the wrong search terms) or downloading them. Whatever the reason, both state and federal courts provide that sanctions may be imposed against the party that fails to comply with production. The sanctions vary depending on the severity of the omission and include: by the requesting party in obtaining a further order; party from producing any further documents; court and opposing party as a penalty for non-production; could consider the failure to produce the ESI was because the ESI was damaging; and, party's pleadings and entering judgment against them. is fraught with danger. Any wrong move could damage your case. That is why a cottage industry has been created that assists companies with all aspects of ESI. Being proactive can protect your company in many ways. Working with your counsel, your IT department and ESI experts can help your company develop a plan to organize your computers to make it easier to preserve, retrieve and produce ESI if the need arises. What is certain is that if you are threatened with a lawsuit, your company needs to be prepared to address ESI and e-discovery. We thus urge you to speak with your IT department and counsel to make sure you are ready. Taking steps now may save you in the future. |