Strategies for Clients to Reduce Discovery Costs Ahead of Time

Email and chat are a cornerstone in today’s businesses—and a reason why litigation is so costly. Most clients don’t evaluate their communication practices until they see the bill for an e-discovery platform or for their attorneys’ time spent reviewing documents. But here are some quick do’s and don’ts to improve your communications now to save yourself a headache down the road.

Do’s:

1. Do review before sending. Take a moment to review your email for typos, the correct recipients, and the right attachments. If you’re a plaintiff in a trade-secret case, for example, you’ll want to show that you share confidential information only as needed and with the proper recipients.
2. Do pick up the phone or walk down the hall. Clear and concise language helps avoid confusion. But to avoid misunderstandings in the first place, consider a live chat, and then follow up by email to confirm the takeaways. As a bonus, this will both reduce the number of documents to review and avoid misinterpretations by the other side.
3. Do start a new chain for new ideas. If you have a team working on a few different projects, keep those emails or chats separate. If you wind up in litigation, a single relevant statement in a document can mean we have to produce the full email chain replied below. At worst, this means that the other side learns irrelevant, sensitive information that you otherwise would not have had to share.
4. Do have a consistent retention policy. Your line of business will determine what kinds of documents you need to keep around and for how long (e.g., contracts, financial documents, HR files). For other documents, you can set an automatic policy for employees that deletes files older than a given timeframe. If you end up in litigation, the existing policy will limit what your attorneys will need to collect and review. And if you think litigation is coming, instruct your employees to preserve materials that could be relevant to the litigation.

Don’ts:

1. Don’t overuse “reply all.” Be cautious with the “reply all” function. Only use it when appropriate to avoid cluttering inboxes and potentially sharing information with unintended recipients. If you wind up in litigation, the extra copies of these emails can add up in both data-storage costs and attorney-review time.
2. Don’t respond emotionally. Do not respond to emails when you are angry or upset. Take time to cool down and respond thoughtfully, if at all. And avoid forwarding the email to non-privileged recipients with your hot takes. In litigation, the communications closest in time to the dispute will get the most attention in court—you want them to reflect well on you.
3. Don’t use unprofessional language. Don’t use obscenities or offensive language, even in casual chats. This doesn’t mean you have to treat your Slack channel like your email feed—just be respectful. In a consumer class action, for example, your chats with counterparties could be part of discovery. Companies whose employees use respectful language will come across more favorably than those whose employees disparage or ridicule their customers.
4. Don’t switch to texting to avoid discovery. When lawyers collect emails for litigation, clients sometimes ask if they can avoid discovery by switching to chat or text. The short answer is no. We can argue that collecting chats or texts is more burdensome, but we can’t automatically shield those communications. Worse, an email that says, “Don’t discuss this by email; I’ll text you,” could lead to a costly review of your employees’ cellphones. Keep business communications on your business platforms—or better yet, just pick up the phone.

By following these tips, you can improve your written-communication practices, reduce the risk of embarrassing situations, and minimize litigation costs. Encouraging better habits not only enhances communication but also protects your business’s reputation and wallet.