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.