When Disaster Strikes – eDiscovery

Let’s take a second look at the BP oil leak. In an earlier blog, we discussed the legal consequences of this disaster — particularly as it relates to eDiscovery issues. It would be a futile exercise to try to point a finger on who and what caused the oil spill – it will take engineering ingenuity to determine if structure and manufacture can take the blame. Or was it a human decision that triggered the crisis?

We’ll let time and qualified experts decide that.

But what about the legal disaster that follows a physical disaster? What we’re referring to, more precisely, is an eDiscovery disaster. Fred Blum and Nader Mehdizadeh in LTN Law Technology News (August 6, 2010 edition of The Recorder) recommended six ways to avoid it:

• Preserve ESI – that includes not altering ESI data

• Confer with the opponent – establish parameters for the retrieval and collection of data

• Collect data intelligently – this involves tackling the issue of hiring a vendor to organise the company’s data for litigation purposes

• Hire a vendor you can trust – (read: choose a vendor with specific expertise and who can communicate that expertise in layman’s terms)

• Use hosted databases – it does eliminate some major headaches, in exchange for a monthly fee

• Go to court, if all fails (hardly an avoidance strategy, but I guess they wanted to imply that it’s the last resort)

It can be instructive to focus on recommendation # 2: confer with the opponent. In this era when litigation has become nightmarishly expensive even for lawyers (it’s not fun bankrupting a client – it makes getting paid a little difficult), “humanizing” the entire eDiscovery process can go a long way towards averting disaster.