You are here: Home / Archives for litigation costs

Twitter, Facebook, and the peril of e-discovery | Thomson Reuters

August 4, 2011 By Leave a Comment

It’s been more than 15 years since e-mail began to enliven (or blight, depending on your perspective) the discovery process. By now-despite some notable fiascos (see, for instance, here and here)–we’ve got well-established case law to guide lawyers and their clients in e-mail production. Too bad that’s yesterday’s means of communication. Today it’s all about Twitter, Facebook, and Google +1, whatever that is. So to celebrate establishing a Twitter account for On the Case (@AlisonFrankel), I figured I’d look at the e-discovery frontier of social media.

The news isn’t very good. What little consideration the courts have given to social media discovery has been in the context of postings by individuals, not corporations. And all signals indicate that social media data is broadly discoverable. As Gibson, Dunn & Crutcher explains in its just-published e-discovery report, courts continue to find that when you post to Facebook, Twitter, or their equivalents, you give up the expectation of privacy, even if you’ve sent private messages or set up restrictions on who can see your profile. Judges are increasingly likely to order litigants to provide access to their social media accounts and to preserve their posts. In May, for instance, a Pennsylvania state court judge ruled that a personal injury plaintiff had to turn over even his private Facebook posts to the defense.

It’s no giant leap from that kind of ruling to a looming problem for businesses. As corporations venture into social media to promote their brands and reach out to clients and customers, they have to be prepared to face the same discovery demands. In late July, a Symantec flash poll of 1,225 information tech executives reported that “social media incidents”-such as employees posting confidential corporate information-cost businesses an average of $4.3 million, of which more than $650,000 was attributed to litigation costs. That’s just the beginning, though, according to Symantec, which says corporations face increasing risk of scrutiny for their social media posts. E-discovery of such posts is a certainty, according to Symantec. (Caveat emptor: Symantec has an ulterior motive for predicting social media e-discovery doom. On Monday the companyintroduced a new version of its e-mail archiving software that includes social media archiving as well.)

via Twitter, Facebook, and the peril of e-discovery.

Filed Under: From The News Tagged With: , , , , , , , , ,

A Proactive Approach to Document Management Reduces E-Discovery Costs | Data Recovery Los Angeles

November 14, 2010 By Leave a Comment

Upfront investments of time and money for prevention of large expenditures are a hard sell, especially in a tough economy. We delay replacing old windows and a furnace in exchange for higher heating costs, even though we know that replacement will save over the long term. Listen to all the discussions our government leaders are debating over upfront investments – healthcare, infrastructure, renewable energy, the auto industry. For you, in-house counsel, the topic is electronic data and the inevitable cost of identifying, collecting, preserving, reviewing and producing it in future litigation.

Gone are the days when addressing document collection began after the complaint was served. Electronic data adds many new variables to the discovery process. Before computers and email, one would not think of filing family recipes, online ordering receipts, personal letters and other types of non-business related documentation with the company business files. However, we turn a blind eye to this practice that continues in every company and only react to it when we have to sort through it for litigation. Why are we behaving like this? Perhaps it is because computer storage devices are cheaper than the time and effort it will take to sort the data out. Does the company have an active records retention policy? Does every employee adhere to it? Who’s checking? Does your department work with the IT department to conduct periodic audits? Are there enforcement procedures in place? Is it easy for users to implement records retention in their daily practice through the use of effective tools? Most employees don’t concern themselves with this concept – until they see the budget line item for the processing and production of electronic discovery. At that point, it’s too late to reduce your litigation costs. I know I’m preaching to the choir on this. By now, each one of you has had to face this challenge. Each company’s burden is different, depending on the size and complexity of your organization.

via A Proactive Approach to Document Management Reduces E-Discovery Costs | Data Recovery Los Angeles.

Filed Under: Tech Bytes Tagged With: , , , , , , , , ,

A Proactive Approach to Document Management Reduces E-Discovery Costs | Data Recovery Los Angeles

November 14, 2010 By Leave a Comment

Upfront investments of time and money for prevention of large expenditures are a hard sell, especially in a tough economy. We delay replacing old windows and a furnace in exchange for higher heating costs, even though we know that replacement will save over the long term. Listen to all the discussions our government leaders are debating over upfront investments – healthcare, infrastructure, renewable energy, the auto industry. For you, in-house counsel, the topic is electronic data and the inevitable cost of identifying, collecting, preserving, reviewing and producing it in future litigation.

Gone are the days when addressing document collection began after the complaint was served. Electronic data adds many new variables to the discovery process. Before computers and email, one would not think of filing family recipes, online ordering receipts, personal letters and other types of non-business related documentation with the company business files. However, we turn a blind eye to this practice that continues in every company and only react to it when we have to sort through it for litigation. Why are we behaving like this? Perhaps it is because computer storage devices are cheaper than the time and effort it will take to sort the data out. Does the company have an active records retention policy? Does every employee adhere to it? Who’s checking? Does your department work with the IT department to conduct periodic audits? Are there enforcement procedures in place? Is it easy for users to implement records retention in their daily practice through the use of effective tools? Most employees don’t concern themselves with this concept – until they see the budget line item for the processing and production of electronic discovery. At that point, it’s too late to reduce your litigation costs. I know I’m preaching to the choir on this. By now, each one of you has had to face this challenge. Each company’s burden is different, depending on the size and complexity of your organization.

via A Proactive Approach to Document Management Reduces E-Discovery Costs | Data Recovery Los Angeles.

Filed Under: Tech Bytes Tagged With: , , , , , , , , ,

The Financial Implications of Litigation: Weighing the Costs and Potential Benefits | Westlaw News & Insight

November 9, 2010 By Leave a Comment

How does a business begin to weigh whether the benefits of pursuing or defending a claim are outweighed by the costs of litigation?  By satisfying itself that it has a reasonable estimate of the various stages of the litigation.  In some cases it is not particularly difficult to estimate, within a certain range, the likely out-of-pocket costs of certain types of litigation.  The costs of preparing initial pleadings, litigating provisional remedies (such as temporary restraining orders, preliminary injunctions, and attachments), and conducting discovery, motions, trial, and appeals, can all be estimated based upon benchmarks and prior experience.  An estimate is more likely to be accurate when the scope of the potential claims and defenses is well-defined, the scope of likely document production can be reasonably projected, and the identity of all relevant witnesses is known.

These estimates allow a client to decide whether to pursue mediation or settlement, and enable it to budget appropriately if it does decide to litigate. Financial projections can also serve as a restraint on fees, as they can require attorneys to explain why the costs for the litigation are exceeding estimates.  By accurately estimating the out-of-pocket costs of litigation, the attorney brings value to the client by allowing it to make informed decisions about the litigation.

Litigation costs other than the out-of-pocket costs for attorney’s fees and expenses can be more difficult to determine.  It can be difficult to calculate, even if one were inclined to do so, the opportunity cost of having company personnel focus on the litigation rather than their normal duties.  Even more difficult to calculate would be the loss of business arising from a well-publicized dispute that damages a company’s reputation.  The company may never know what business it lost as a result of unfavorable publicity.  These are among the hidden costs of litigation.

via Westlaw News & Insight National Litigation Blog.

Filed Under: From The News Tagged With: , , , , , , , , ,

Lexology – E-discovery & information governance – do you know where your email is?

September 6, 2010 By Leave a Comment

If you have ever been involved in litigation, you know that the process of finding, collecting, reviewing and producing the evidence that supports your case is often difficult, lengthy and expensive. As we have transitioned from a primarily paper to an electronic world, the costs of discovery can sometimes threaten to overwhelm all but the largest disputes. One way to minimize these costs is by properly governing your information.

Effective information governance means establishing enterprise-wide policies and procedures for the creation, use and retention of information. If implementing a thorough information governance plan seems daunting, a good first step is to start with your email, specifically, where your email is located. (Governing how to use email effectively and how to decrease the volume of email being saved will be addressed in future articles.) Waiting until you are in the middle of a lawsuit to ferret out the hidden caches where your employees are saving and storing email is often a contributing factor to increased litigation costs.

via Lexology – E-discovery & information governance – do you know where your email is?.

Filed Under: From The News Tagged With: , , , , , , , , ,

Lexology – E-discovery & information governance – do you know where your email is?

September 6, 2010 By Leave a Comment

If you have ever been involved in litigation, you know that the process of finding, collecting, reviewing and producing the evidence that supports your case is often difficult, lengthy and expensive. As we have transitioned from a primarily paper to an electronic world, the costs of discovery can sometimes threaten to overwhelm all but the largest disputes. One way to minimize these costs is by properly governing your information.

Effective information governance means establishing enterprise-wide policies and procedures for the creation, use and retention of information. If implementing a thorough information governance plan seems daunting, a good first step is to start with your email, specifically, where your email is located. (Governing how to use email effectively and how to decrease the volume of email being saved will be addressed in future articles.) Waiting until you are in the middle of a lawsuit to ferret out the hidden caches where your employees are saving and storing email is often a contributing factor to increased litigation costs.

via Lexology – E-discovery & information governance – do you know where your email is?.

Filed Under: From The News Tagged With: , , , , , , , , ,

Staying proactive with e-discovery strategies – Atlanta Business Chronicle

August 2, 2010 By Leave a Comment

Lawsuits and investigations are becoming the norm rather than the exception throughout Corporate America — and their associated costs are escalating. When combined with regulatory actions, litigation often can consume more than 70 percent of an organization’s entire legal budget, with a large portion attributed to e-discovery requirements. The discovery phase alone may represent more than 50 percent of the total litigation costs, and e-discovery can consume more than half of that budget.

Part of the reason is that courts continue to hold businesses accountable for how they handle (or mishandle) discoverable electronically stored information (ESI) related to investigation or litigation, while compliance costs related to volume of data, duplications, complexity and decentralized and mobile means of communicating and storing electronic information skyrocket. It also is important to note that while most courts generally identify several discovery failures before issuing sanctions, even one failure can compromise a company’s legal position, undermining its cost containment and compliance efforts.

via Staying proactive with e-discovery strategies – Atlanta Business Chronicle.

Filed Under: From The News Tagged With: , , , , , , , , ,