In almost every serious civil action (lawsuit), there will be an exchange of documents and information within a few months of filing and service of summons. When you are involved – or about to be involved – in a case to protect your business interests, it is vital that you have your affairs in order. This is important not only so that you may win your case – it is also needed to make sure you fully comply with your obligations before the court.
Determine Scope of Relevant Information
The first step in most lawsuits is to determine – with the help of your lawyer – what are likely to be the major topics in the case. Sometimes you will have notice of this (i.e. if you receive a production request with your summons as a defendant), other times you and your lawyer will have to make a best approximation. Determine what kinds of documents and types of information you or your company may have in your custody, possession, or control (including what you can reasonably obtain from others). Note that you do not usually need to create documents in response to discovery requests.
Identify Custodians of Information
Once you know the sort of information and documents you’re looking for, it is good practice to identify everyone who may have possession, custody, or control of the information you’re looking for. We’ll call these people “custodians” of information. Let each one of them know you’ll need their help and cooperation, and that they may become important witnesses in your case.
Identify Repositories of Information and Documents
Talk with your custodians and identify with them, systematically, where all the places are that relevant information may be found (we’ll call these “repositories”). This should include not only paper files, but any and all digital media, including computers, thumb drives, email accounts, cloud-based servers, and yes, even smartphones like iPhones and android platforms. It is a good idea to create full back-ups of each of these repositories immediately.
IMPORTANT: Do NOT publish any information at all about your case – ever – on social media. Statements on Facebook and similar platforms are generally discoverable and may waive attorney-client privilege. Instruct EVERYONE in your organization to maintain strict social media silence about your case.
Search for Related Materials
After you have identified all potential custodians and repositories of information, you should conduct a systematic search for the documents and information you’re looking for within each and every one of your repositories. If you’ve identified a batch of documents, make sure they’re randomly searchable, because you’ll need that capability later. [Adobe Acrobat Professional and similar applications can convert existing PDFs and other types of files to randomly-searchable format].
Work with your trial attorney to come up with a list of search terms that will help you make sure you’ve found what you’re looking for. Then, search each of your repositories one by one for each search term, and save everything that comes up in a folder. Use a chart to keep track of your progress.
Preserve All Potentially Relevant Documents and Information
When you have found all of the documents responsive to your searches, be sure to pull them all together and create one or more backups of your search results. This will protect you against any later accusations of “spoliation,” i.e. destruction or loss of potentially relevant evidence.
Logical Groupings of Documents
After you’ve pulled all of the information that appears important to your case, you can give your legal team a leg up by organizing it in logical ways. For business organizations, the simplest way to do this is usually to arrange documents as they’re commonly kept in the ordinary course of business. [If you are producing documents in response to discovery requests, you may also choose to organize them by request to which they correspond, although there is frequently overlap between categories that can confuse matters].
One of the most useful ways to organize your documents is in chronological order, with your oldest documents on top and newest ones on the bottom. This can be especially important for emails and critical documents, like contracts.
Lastly, it will serve your attorney well to have your thoughts on what you believe is important, organized in a chronological manner. I personally prefer tables for this (Xcel works well, as does Pages on a Mac), but bullet-point format works fine.
Good luck in your fight for justice. Please let us know if you have any questions; we’ll be glad to help as we can.