The Dream Team: Managing Litigation CostsMetropreneurial Legal Insights — By Catherine Jopling on November 15, 2012 at 8:00 am
Well, it’s happened. You’re a party in a lawsuit.
You’ve either had the unpleasant task of suing somebody else or been sued yourself. It’s part of doing business, and you’re staring down the barrel of a possibly long and expensive process.
Often the greatest expense is what is referred to as “discovery.” Discovery consists of written discovery and oral depositions; managing the former is the focus of this article.
Written discovery predominantly covers two categories: interrogatories and document requests. Interrogatories are a list of questions authored by the opposing side, asking for more information on certain topics. Document requests −typically authored by the opposing side, but sometimes ordered by the court− are requests for documents containing certain information.
The document request itself may only consist of a few pages, but responding to it can be a daunting task. Your business must produce all the documents responsive to these requests, and this could require quite a bit of digging.
Responsive documents might be in paper form or electronic form. The documents might live in file cabinets, in off-site storage, in employee telephones, on company servers, or dozens of other locations. As with most business challenges, you need a plan.
Whether your business is large or small, there will be three key players to providing a complete and efficient plan for document discovery: your lawyer, an information technology specialist, and you− the voice of the business.
There will be one other character at the table, arriving at your meeting without an invitation− cost. Document discovery is expensive. It’s a major factor (and major pain) in making your discovery plan. Your impulse will be to spend as little money as possible when it comes to document discovery. As with every business decision, a cost/benefit analysis yields a predictive path for your choices.
However, keep in mind that the most inexpensive short-term solutions may yield unnecessary expenses down the winding road of litigation. Being aware of all the costs and benefits will lead you to the right decisions for your business.
Assembling your team is your first defense against high discovery costs. A full picture of the task at hand can help all parties predict a more accurate budget plan. Nothing in litigation is certain, and the discovery portion is probably the most unpredictable phase from a cost perspective. An early assessment, however, will help you evaluate your options moving forward.
Your lawyer holds the roadmap for the discovery and litigation process.
Though seemingly boring, litigation strategy begins in the discovery phase. At the most basic level, your attorney interacts with opposing counsel regarding what documents and information are being requested, and what needs to be produced to meet ethical and legal obligations.
At times, it can feel like a lot of money is being wasted looking for documents with little relevance to the case. Judges can sanction an attorney, and penalize the client, for incomplete discovery practices. Your attorney will help educate you about the risks and benefits of your discovery plan. She can also negotiate with the opposing side to come up with reasonable parameters to the process.
The IT guy has the details about your electronic documents.
The information technology piece of this crack team might come from your business, or he could be a third party consultant.
Where do your documents live? How are they stored? How are they maintained?
An IT guru will know how to compose a nuts-and-bolts plan to tackle collection of these electronic documents so they may be transferred to the legal professional for review. He can find the weaknesses in your document maintenance and offer creative solutions for retrieval.
Nobody knows your business like you do.
Though your lawyer is hopefully filled with legal knowledge and experience with document discovery, no one knows your business like you do.
This whole litigation mess is probably something you’d rather forget and let other people handle, but your active participation in answering questions about your business and its documents will save you money. With your finger on the pulse of the process, you can make the best decision about the costs of discovery and whether a settlement is the best option for your business plan.
Only your attorney can advise what should be ultimately produced, but that decision comes from having a complete picture of the business. Her efforts will be incomplete −and at times duplicative− if she is left in the dark about what documents are out there and the best way to obtain them.
There may be aspects of the discovery plan that can be handled internally to keep your legal fees lower, utilizing your legal counsel for her highest and best use. The better your team can work together and communicate, all the better for your bottom line.
Catherine Jopling is an attorney in Barnes & Thornburg’s Litigation Department. She concentrates her practice on commercial litigation and arbitration.
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