No matter how vigilant, an insured cannot fully insulate him/herself from a potential lawsuit. Defending a lawsuit can be costly, even in a case where an insured is ultimately not held liable. Advancements in technology, including the ubiquitous use of e-mail, can significantly increase the cost of litigation. With the unavoidable expenses associated with litigation, claim professionals should be aware of what mechanisms (if any) their insureds have implemented with respect to electronic discovery (e-discovery), especially in light of requirements mandated by the courts.
Mechanisms to Reduce Costs
It is essential to identify whether an insured has developed and implemented a document retention policy. Claim professionals should not wait for the filing of a claim or lawsuit to know how their insureds maintain their electronic information. They should be aware of whether the insured is being proactive by developing and implementing a document retention policy, with the assistance of counsel, before a lawsuit is filed. This applies to all insureds, no matter how big or small.
Retaining a Consultant Early
The first order of business is to retain information in a manner that makes it easily retrievable. A consultant can often be helpful in identifying formats, systems, and methods to retrieve, copy, and produce electronic information. A consultant is also necessary to ensure that during this effort, the integrity of the original data is preserved. While it is ultimately necessary to preserve information company-wide, it is also important to remember that only a small fraction of the preserved information will be relevant for any given case. If a consultant is involved in the initial collection and storage process, then he or she will be able to proactively develop a plan to search the ESI in an effective, efficient manner. By identifying the type of information that may be relevant to the claims, a consultant can develop a matrix of searches to obtain information that reduces the amount of documents that would eventually be produced. Narrowing discovery is a direct cost-saving measure when the insured is producing discovery.