(or you reasonably anticipate it will be)

Preserve immediately, and afterwards, preserve often

  • Send out a litigation hold immediately when a lawsuit is filed or you have a reasonable expectation that matter will turn into litigation
  • Tailor litigation hold to the case, both in its language and recipients; consider creating multiple versions
  • Confirm receipt of the litigation hold in writing
  • Monitor and update recipients on an ongoing basis
  • Expand litigation hold as new topics/people are discovered
  • Expect that a judge/opposing counsel will see the efforts you make to preserve data

Do not let the tail of e-discovery wag the dog of the case

  • Consider proportionality of case to volume of e-discovery
  • Budget, budget, budget
  • Pick your discovery fights
  • Be proactive
  • Do not procrastinate and end up on the defensive

Do your part to make e-discovery a less burdensome, time-consuming, and expensive process

  • Insist upon cooperation between parties whenever possible
  • Set tone of how case will be handled both inside and outside the company
  • Get the right people on the job - IT experts where necessary, not just lawyers
  • Be mindful that defendants may be perceived as "giants" and held to higher standards