Crowell & Moring

I recently published an article for InsideCounsel addressing ways companies can reduce risk and costs in litigation. I advocate appropriate self-help.

Unfortunately, the courts, regulators, and legislators have not fully kept up with the extraordinary pace of technological developments, the proliferation of ESI, and the growing use of social media, cloud computing, and other ESI-related measures that can drive up costs and increase risk in litigation. As I note in the article, companies primarily used to fear the single “smoking gun” document that might turn up in discovery. Now, the sheer volume of documents collected, reviewed, and produced in discovery can impose crippling costs and burden on even the largest companies, even in meritless cases – and of course, the more documents created and produced, the greater the risk that a “smoking gun” document turns up in discovery.

There are a variety of steps companies can take to reduce litigation expense and exposure. This includes dramatically reducing the volume of ESI maintained by the company, adopting litigation readiness plans that identify sources of ESI within the company and that assign responsibility for specific discovery-related tasks, and using available technological tools, such as technology-assisted review (or predictive coding). You can read the brief article here.