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Articles in this Series Disclosure for litigation or regulator
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Disclosure, Litigation Readiness and Document RetentionThe Pyramid of PreparednessÅ This is one of a series of five linked articles on this subject5. Where do you begin?So where do you begin with any of these exercises? There is, inevitably, no one simple answer to that. Every business has a different context – the ranges of data stores, the pressures on and exigencies of the business, the habits of the document creators, the extent of the perceived risk, the IT and other resources and the relevant skills and knowledge of the company's lawyers, are different in every case. What you really need is an outsider to come and ask the questions, someone who knows the rules and the requirements, is at home equally with the IT and the legal side, who understands the tools and the processes and who knows who to turn to when specialist advice is need on a narrow area – but who, crucially, does not know what happens in your particular office. If you think you know the answer to something, you do not ask the questions or, at least, you do not pursue them in the way that your lawyer – if he is any good on this subject – will ask them when the crisis arises. Furthermore, the outcome of such an exercise brings the conclusions into the corporate memory, and not just as a part of a distributed network of knowledge whose integrity depends on the same team staying with you for ever. Here you may say with Mandy Rice-Davies "He would say that, wouldn't he?" and it would indeed be odd if I devoted the time it takes to write 3,500 or so words on a complex subject to arrive at the conclusion that you should just get on with it on your own. Look at it this way: if your relevant staff had the time, resources and knowledge to pull together the information, distil it and reduce the results to a set of procedures and processes fit for any relevant purpose, you probably would not have read this far. It is not a criticism of them, nor necessarily a reflection on the organisation as a whole, if your business is not geared up for prompt, accurate, timely and cost-effective Disclosure. It may appear so, however, when Judge Schiendlin of the Southern District Court of New York, or her UK equivalent, turns her attention to your document management. A curious side-wind brings me a parallel. A letter in today's Times observes that, whilst opera directors undoubtedly do check that the singers' words are audible throughout the house, they do so after hearing them sung through weeks of rehearsal. They know the words and their tests say nothing as to what an audience will hear. The same is true of an organisation which reviews its own preparedness for Disclosure. The outsider's potential input is the more useful because he started from the same degree of knowledge of your document system as your lawyers would if the threat of litigation appeared tomorrow - none. A lot has been left out of this summary, some of which will be covered in future articles. A lot of it, however, is personal to an organisation and cannot be packaged in advanced. If you want to discuss any
of the
issues raised in this article, please do not hesitate to
contact me.
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