Effective early case assessment is dependent on a complete data set.
On the average 97% of data generated within businesses is electronic. The average employee generates and receives up to 20 MB of email and potentially hundreds of MBs of office work files per day. Litigation is a huge problem these days for businesses. A huge amount of the cost of litigation is the cost of finding and reviewing electronically stored information (ESI) for both early case assessment as well as eDiscovery request response. ESI can hide anywhere in the corporate infrastructure; custodian workstations, network share drives, USB thumb drives, CD/DVDs, iPods etc. A centrally managed and fully indexed archive can speed the collection and review of potentially responsive records for early case assessment as well as more fully control and insure the placement of litigation holds.
No matter the case, the first question when you’re faced with litigation is whether the case has merit. If you haven’t prepared a case assessment strategy ahead of time, it will be difficult to quickly and effectively determine your strategy going forward; should you settle or fight…
An early case assessment capability provides you with four obvious benefits:
- Provides an early indication of the merits of the case – do you have any actual liability.
- Can suggest the proper strategy going forward.
- Can provide you an estimate of the cost of defending the case and the time required.
- Will help you plan for the discovery process and prepare for the “meet and confer” meeting.
Let’s look at some scenarios.
You’re the General Counsel of a publicly traded software company in the state of California.
It’s a Friday near the end of summer and you’re sitting in your office thinking about your Hawaiian golf vacation which begins tomorrow.
You’re checking the last of your mail before you leave for 3 weeks.
You open a letter from an outside law firm addressed to you…
(Your secretary hears a string of profanities emanating from your office)
You immediately think to yourself; once this news gets out, your company’s stock will be hammered, your board of directors will want an update yesterday, your channel partners will want to be advised on their potential liability, sales that are in process will stop, your CEO will want to know if the case has merit…and your wife will want to know why you just cancelled the Hawaiian vacation she was looking forward to (she was staying home).
What to do first?
You call the plaintiff’s law firm of Tolson & Yonamine to determine what this case is based on…what’s driving it. The Partner managing the case can’t be reached but 2 hours later you receive a fax (a fax, really?) of a printed email that looks like it came from within your company…
What the…? Who, in their right mind would seriously consider something like this much less put it in writing?
Ok, first things first. Your next steps are:
- Find out who “Jennifer” is, who she reports to and what department she work in. Also find out if she is even still with the company
- Call the VP of IT and let her know what’s going on and verbally tell her to secure any infrastructure data from Jennifer or Bob
- Follow that up by sending an email to the VP of IT asking her to secure Jennifer and Bob’s email boxes, and any backup tapes for their respective email servers
- Send an email to Jennifer informing her of the litigation hold, her duties under it and the consequences if the directions are not followed
- Send an email to Bob informing him of the litigation hold, his duties under it and the consequences if the directions are not followed
- Instruct the VP of IT via email to find the original of the email in question on the email servers or backup tapes
To complicate matters, the VP of IT calls back immediately to tell you that the company only keeps backup tapes of the email servers for 30 days and are then recycled. She also informs you that the company has a 90 day email retention policy meaning that employees must clear emails older than 90 days out of their mailbox or the company will do it automatically. Copies of those emails, if they exist, will only be available on the employee’s local workstations. You think to yourself; if that’s the case, how did the outside law firm get them?
You send one of your staff attorneys and an IT person to both Bob and Jennifer’s offices to look for a copy of the email on their local computers etc.
Later, you find that Bob has a 3 GB PST, local personal email archive, on his laptop where the email might exist but for some reason the IT guy can’t open it. IT calls Microsoft support and is told that the PST is too big and is no doubt irrevocably corrupted.
In the mean time, one of your staff attorneys spends 4.5 hours at Jennifer’s office and eventually finds a copy of the email in her local PST… the email really does exist…%$#@!!. She has no idea why she would have written something like that and there are no records of any other emails associated with that particular smoking gun email. Because the email in question is older than the company’s oldest email server backup tapes, your early case assessment is stopped dead for lack of data.
After several months of negotiating with ABC Systems and their law firm, you settle for damages of $35 million and an apology published in the business section of the San Jose Mercury News.
In the preceding scenario, the available early case assessment process suggested that the case might have merit and should be settled before more resources were expended. In this case, the early case assessment was negatively impacted by a shortage of data due to retention policies that were put into place mainly for storage management reasons.
Having access to all relevant information early on can mean the difference between fighting a winnable case and settling the case early for hopefully much less then is being asked for. An early case assessment strategy with the right tools can improve the odds of a favorable outcome.
Early Case Assessment with Proactive ESI Archiving
Let’s look at the preceding scenario with one difference… the defendant has an ESI archiving system and a more common sense retention policy which in this case includes a 3 year retention policy for email.
You are the General Counsel of a publicly traded software company in California
It’s a Friday near the end of summer and you are sitting in your office thinking about your Hawaiian golf vacation which begins tomorrow
You open the last of your mail before you leave for 3 weeks
You open a letter from an outside law firm…
This can’t be real. This must be a joke from your $*@$!! Brother-in-law. After calling him and determining it’s not a joke you think to yourself; NOW WHAT?
You call the opposing counsel to determine what this case is based on. The partner managing the case can’t be reached but 2 hours later you receive a fax showing a printed email that looks like it came from within your company…
Next, you must place a litigation hold on all potentially responsive records
- Find out who “Jennifer” is, who she reports to and what department she work in. Also, is she even still with the company
- Call the VP of IT and let her know what’s going on
- Instruct one of your staff attorneys to query the email archive to determine if that specific email exists, and to provide the entire conversation thread around that email so you can review it for intent.
Your staff attorney quickly queries the archive and pulls up a copy of the email message with the entire conversation thread, puts the entire conversation thread on litigation hold and sends you the following email…
“Boss, the email in question was based on the following conversation thread starting with the CEO:”
“Based on the early case assessment using the email archive and the conversation thread capability, I found that the “smoking gun” email was taken out of context and can prove the case has no merit…We should talk to opposing counsel as soon as possible to end this now.”
You think to yourself; whatever person’s idea it was to get that email archiving system in place should be given a load of stock options…
You spend the next morning talking to the opposing counsel…the action is withdrawn a month later…
You continue with your golf vacation having only missed two days and your wife is especially happy you were able to go on your vacation (alone).
An important aspect of an early case assessment is to tell you if the case has merit. It’s difficult to make an informed assessment about a case without all the data…
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