Be Ready When the Suit Hits the Fan
The new California discovery law provides you with both opportunity and risk.
In summer 2009, California discovery law dramatically changed with the enactment of the Electronic Discovery Act (EDA) [a.k.a. AB 5] and the related amendment to California Rules of Court, Rule 3.724.
The new legal treatment for electronically stored information (ESI) will have a critical impact on how you litigate in California. Mastering the revised statute and amended rule of court regarding ESI offers the attorney who is up on his or her game the ability to gain a decisive advantage.
Failing to master the new ESI regime leaves you litigating with one hand tied behind your back and your client vulnerable to everything from sanctions to a disastrous outcome. In addition, failing to perform competently violates your duties under the State Bar Rules of Professional Conduct.
On the other hand, your firm has a business opportunity to educate your clients regarding e-discovery so that they will be ready when litigation occurs. If not prepared, you will be handicapped from the start. The costs of litigation could increase significantly above the inevitable burden discovery normally places on your clients. Begin now and your client could save an enormous amount in litigation costs – also reducing your headaches and increasing your chances of prevailing.
Even before a lawsuit begins, many essential steps must be followed in preparation for electronic discovery. Once litigation is (or should be) “reasonably anticipated,” critical duties attach. To fail here may weaken your case from day one, although it may not hit you until you’re deep into the litigation.
Certainly by the time the complaint is filed, counsel must be ready to jump: everything from having draft language for the Case Management Statement prepared to having a team and plan in place. The advent of e-documents changes what one must do and when. Once the complaint is filed, it is very difficult to play catch-up for both you and your client. The importance of such preparation far exceeds the typical preparation undertaken prior to the current regime of demanding, producing, and receiving information in electronic form.
So your practice is and looks ready, and has a competitive advantage in getting new clients and serving current ones, consider the following:
1. For your practice, address the following:
a. Personnel: To whom will you look in your practice to coordinate what your firm does in hosting and reviewing the documents/ESI from your client and produced to you from your adversary?
b. Infrastructure: Do you have the capacity to handle the ESI from each party in-house or the ability to scale up? You will want to review at least a selected subset in-house, even if from a third party online. Do you have what and whom you need?
c. Consultants: Do you have an e-discovery technical expert or two on call who can give you independent advice? Do you have relationships with a few key vendors so that you’re not determining at the last minute who works best with your firm’s resources and culture?
d. You: Are you up to speed on e-discovery so that your knowledge instills confidence in your client?
2. With your clients, to help them prepare:
a. Set up an e-discovery group, composed of someone from your firm, in-house counsel, management, and IT (along with your e-discovery technical expert and trusted vendor)
b. Address with your clients whether minor (or even major) changes to their ongoing recordkeeping regimens might be justified by making them more compatible with litigation demands. A change to more integrated and "litigation accommodating" modes of recordkeeping may do much to mitigate the extraordinary expense that now often attends the ad hoc treatment of each litigation “emergency." Such a change makes particular sense for a client for which litigation is a recurrent feature of its business life.
c. Integrate the likelihood of litigation involving considerable e-discovery with the client’s risk management policies.
d. Use the new e-discovery law as a business opportunity to teach your clients.
If you are ready, a relatively small matter may be handled much more efficiently than if you are not prepared. It is easy to be overwhelmed by the demands of e-discovery. The quantities of discoverable information are far greater, as are the risks of mishandling and associated costs.
For more detailed information on the new California law – including a redlined version of the changes in the Civil Discovery Act and related amended Rule of Court 3.724 – and e-discovery and necessary preparation and strategies, send us an email. law@willhoffman.com