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Business Litigation Alert - "The Risks and Opportunities of E-Discovery"

Analyzing The Headline

E-Discovery is a critical component of litigation today. Two recent headline-grabbing events highlight the risks associated with e-Discovery, but also present an opportunity for companies to minimize that risk.

RISK

In the first instance, a former BP employee was charged with intentionally deleting relevant text messages after being told to turn them over to company lawyers. He was indicted for obstruction of justice while the company was further embarrassed by its allegedly renegade “corporate culture.”

  • This incident highlights the risks associated with e-Discovery, underscoring the need for companies – and company employees – to preserve electronic information and the ramification if that is not done.
  • More importantly, it highlights the necessity of making sure employees are trained on the scope and application of the policy. Absent compliance, companies under a duty to preserve run significant risks when electronic information is destroyed – from public embarrassment to judicial sanctions to criminal charges.

OPPORTUNITY

The second event offers potential relief to companies from the exorbitant costs usually incurred in reviewing and producing electronic documents and e-mails in large litigation.

  • A federal judge from the Southern District of New York recently gave the green light for parties to use computer assisted “predictive coding” software to search for and identify relevant electronic documents.
  • This could significantly shorten the time and reduce the expense involved in electronic document review. Currently, the early stages of most large lawsuits are taken up with costly, manual document and electronic information review. Predictive coding review offers an automated process that is faster and far less expensive.

The lesson learned from these two matters is that e-Discovery continues to be an evolving area of litigation that poses unique risks to a company and its employees. However, by utilizing the available tools, companies can create an opportunity to significantly minimize those risks.

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