Let’s face it – suggest a litigation readiness plan to any corporate officer and you might as well be trying to convince him of an impending zombie invasion. While many of us in the legal space understand the importance of such a plan, business generally does not respond to maybes. Take society as an example. It isn’t until after disaster strikes that we are likely to implement change in our routine.
The same holds true for corporations. If there isn’t a discovery request in hand, a plan will likely never come about. While litigation can strike at any moment, companies are not going to interrupt their routine to stop and plan for this type of disaster. After all, business is about increasing the bottom line. Warnings of business interruption and vanishing profits caused by potential litigation may cause some to take notice, but it likely won’t spawn immediate action.
As with any corporate initiative, we have to move past “what could be” and understand exactly “what is.” By doing this, the ROI of a litigation readiness plan becomes tangible and can be realized. According to Gartner, IT budgets are anticipated to grow 3.1 percent over the course of 2014. This is a jump from 2013, which witnessed relatively flat budgetary growth. While this uptick is a good sign that businesses are beginning to make technology moves, it still means every dollar counts.
In order to achieve the desired ROI, those delivering a litigation readiness plan are going to have to understand not just the anatomy of business, but the anatomy of the specific business at hand. Sure, you can warn of mutant zombies and offer up a super-duper zombie defense kit. However, without a zombie breaking down the door, your warnings will fall upon deaf ears and no investment in the kit will be made.
The key to realizing ROI, as outlined by TekSystems’ 2014 Annual IT Forecast, is “updated applications and infrastructure [that will] increase accessibility, speed and efficiency to help drive growth and revenue.” This means not just a zombie defense plan, but rather a combined plan of legal, IT, and business process improvement, coupled with systems recommendations that increase overall efficiency.
To achieve these goals, you need to understand the following:
However, getting at this data requires more than just one person. It requires an outside team that consists of legal and technology consultants, working hand-in-hand with the company, to understand business goals that extend beyond litigation readiness.
Any good Walking Dead fan knows that the individual left on his or her own is likely not going to see the next episode. The same holds true for business. Each department within an organization serves a business purpose and is an ally to the other departments. Understanding each department’s objective and fit within the company will help outline clear communication protocols.
To execute a successful litigation readiness plan, you need to meet with all of the organizational stakeholders. Your team of allies should include at least one representative from each of the departments below (note that some of these roles may be duplicative in certain companies):
Once this team is assembled, their input will be vital in order to map key data systems within each department used to communicate and conduct business. More on that in a minute.
These allies are a critical component of your litigation readiness plan, as they will be responsible for ongoing execution of the tasks outlined. This is the first step on the path to realizing ROI, as a plan is only as formidable as those who put it into motion. You will look to these allies to brief you on communications, workflows, and how data is put to work. Without their help, your plan will be no more than an open gate to the zombie invasion.
Most people believe that the one true weapon in business is data. However, data is just a building block. The real weapon is actually the information derived from that data, which in turn creates the business intelligence that is leveraged to reach corporate goals.
Business data can take on many forms and reside in many locations. Some of these forms may include financial, statistical, and analytical, as well as communications. This data may reside in internal structured databases, on file servers, in the cloud, or outside the organization (provided by a third party). Whatever the data type or location may be, without understanding the information it generates, you are far from ready to fend off a zombie attack.
Let us review. We have assembled our departmental allies, who have provided us with the road map for communication within the organization. Now we need to build our data and system map and align it with their departmental goals. This further defines each department’s role within the company, including system owners. Examining how each may leverage this data to create business information is vitally important.
Data transformed into information results in work product, which is often the primary target of discovery. This may include email, word processing documents, statistical reports, or client lists. It is important to ascertain the vital sources of information within the organization, as this will quickly identify the core data systems on which the business relies. Subsequently, work product, and its location within the organization, will reveal itself through this process.
Now that we have our stakeholders, communications, systems, and data maps at the ready, we can assemble the last component of our litigation readiness plan – context.
Any organization will tell you that they want to be the best on the business battlefield. A litigation readiness plan will help an organization achieve this goal, while demonstrating tangible ROI. While some businesses in certain sectors may have similarities, how they wield their information as a weapon in battle is often drastically different.
Getting to know a company’s market segment will determine the difference between speculating on “what could be” versus clearly defining “what is.” Corporations do not like to deal in abstracts. The world is full of zombie horror stories spinning tales of discovery run amuck, resulting in adverse inferences and sanctions in the millions of dollars. While these headlines grab attention, they do nothing to provide clear context of the discovery process to corporations outside of the actual litigation.
With this said, a clear understanding of the business’s purpose will provide context for where and how litigation may arise, as well as the potential effect to the company’s bottom line. Are they more susceptible to patent infringement allegations, class actions, or IP theft claims? What is the greatest threat to the business process should litigation occur? What is the potential financial impact of each type of litigation?
We have reached the point where assigned teams need to brainstorm and assemble measured metrics for each battlefield weakness identified. However, during this process, additional metrics need to be measured to establish ROI.
Let’s be clear: the consequences of litigation are tangible, but the impact to a company’s bottom line can only be measured after the fact. Here lies the issue when preparing for litigation and demonstrating ROI. If the zombie invasion never occurs, preparing solely for such an event is money lost. Given these circumstances, it begs the question of what exactly the core focus of a litigation readiness plan should be.
Believe it or not, it may not be litigation at all.
As we have outlined, a litigation readiness plan should assess data systems, information, and communication workflows while identifying potential litigation pitfalls. Much of the preparation involves diving into the tools used to manage data and create work product, including the methods employed to exchange and disseminate this information between departments. So, let’s recap what we have assembled.
We gathered stakeholders, diagramed communications, created data maps, and now understand the business’s purpose. These should yield, at the very least, detailed diagrams, descriptions, and listings of the following:
With this information in hand, demonstrating ROI is relatively straightforward. Here are a number of items a thorough litigation readiness plan identifies:
Each of the above items standing on its own could be responsible for saving thousands, if not hundreds of thousands, of dollars depending upon a company’s size and spend on that item.
Calculating ROI is based upon the savings realized from the implementation of the project over time minus the cost of the project. Of course, the financial gain realized will vary for each business undertaking this process. Below is a formula for calculating ROI to realize the value of a litigation readiness project.
ROI = [(Financial value – Project cost) / Project cost] x 100
Litigation readiness becomes an added benefit of what is actually a corporate systems inventory and data mapping project that, if done right, will pay for itself in multiples over time.
ROI confirmed. Litigation readiness plan completed. Zombie invasion avoided.
Trent Livingston, a Director at iDiscovery Solutions, Inc. (“iDS”), advises law firms and corporations surrounding litigation readiness, the implementation and use of e-Discovery tools, as well as web and cloud-based technologies. He possesses over fourteen years of hands-on technology experience and computer programming expertise. Mr. Livingston is also an Adjunct Professor for Golden Gate University teaching complex data discovery. You can follow him on Twitter @ESIGeek.
Bobby R. Williams, Jr., a Consultant at iDiscovery Solutions, Inc. (“iDS”), has supported litigation and law enforcement professionals for over twelve years. With his vast experience, skills, and knowledge of the entire EDRM lifecycle, Mr. Williams collects digital evidence, develops and administers structured data systems, provides consultation for litigation hold strategies, and utilizes live evidence databases during trial.