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CCCA_V2No2_Dept-CrossBdr-FIN.qxd:CCCA_V1No2_Dept-CrossBdr-V1.qxd 4/30/08 5:15 PM Page 15 Cross Border Risky Business Devise a litigation readiness program to survive the U.S. court system. ost companies doing business in with each other. 3. Understand the courtroom Mthe United States should operate Plaintiff’s counsel often approach litiga- environment. under the assumption that it’s a matter of tion as a business — their fees are usually A litigation readiness program should offer when, not if, they will face a potentially based on successfully obtaining a damage discussions and demonstrations of a U.S.jury devastating lawsuit in that country. The award. Some have even proclaimed that trial, from start to finish.Watching a demon- American litigation environment is grow- mass U.S. tort litigation is the best place to stration of jury selection (which differs ing more complex,with recent changes in invest financial resources. Defence counsel between federal and state courts) is akin to regulations, new executive liability risks, also can play a variety of roles in litigation watching sausage being made, and can help and threats of damage to a company’s — for example, in a pharmaceutical prod- decision-makers appreciate how opposing reputation. Litigation readiness programs ucts liability case, defendants can include counsel will portray corporate activities. are now essential to conducting business manufacturers, distributors, sales represen- Observing how the presentation of evi- in the United States. tatives, and physicians. dence and witnesses occurs can also help Litigation readiness means your compa- companies understand how best to evaluate ny is as prepared for challenges and costs in 2. Protect sensitive documents. their current processes. Most dramatically, a the courtroom as it is in the marketplace. Litigation readiness programs should also demonstration of opening statements and Here are four essential points to any litiga- address the sensitivities surrounding docu- final jury arguments can bring into focus tion readiness program. ments, from their creation to their use in how documents and ESI, as well as phrasing the courtroom. Those not familiar with and word-choice — can be taken out of 1. Know the law. how corporate documents can end up in context by motivated opposing counsel. Many worldwide companies are surprised to news headlines continue to suffer under learn just what can constitute“doing business” the delusion that all e-mails and documents 4. Be ready for e-discovery. in the United States. Depending on the cir- created outside the U.S. are protected by or Electronic discovery preparedness is in flux: cumstances, any of these actions might expose subject to some privilege. case law interpreting the Federal Rules con- a manufacturer to an American lawsuit: Under Federal Rule of Civil Procedure tinues to evolve,new state laws are being cre- • releasing goods into commerce that find 26f (and many corresponding state rules), ated, and technological advances never stop. their way to the U.S.; litigants are required to meet and confer at ESI requests from opposing counsel expand • entering into contracts that are perform- the beginning of any lawsuit.At this initial as technology enables the exchange and able, even in part, in the U.S.; meeting, counsel discuss the issue of what review of more and more massive amounts • engaging in activity, even if conducted information — including electronically of information. entirely outside the U.S., that has a reason- stored information (ESI) — should be pre- As referenced above, the “meet and con- ably foreseeable impact on U.S.commerce. served and produced.The rules also require fer” process in the Federal Rules of A litigation readiness program should identification of which ESI is and is not Procedure requires the parties to create a dis- include an educational module that teach- reasonably assessable. covery plan that addresses “any issues relating es those not familiar with the U.S.legal and A litigation readiness program should to disclosure or discovery of ESI.” In fact, regulatory environment about the law, the also provide templates in preparation for under the Committee Note to Rule players and the process. Potentially applica- responding to other discovery tools 26(b)(2), a producing party must provide ISTOCKPHOTO ble laws may arise from courts, statutes like mandatory disclosures, interrogatories, notice of the “category or type” of “sources containing potentially responsive information request for production, requests for admis- and/or regulations, each at the federal and that it is neither searching nor producing.” state level and each subject to interplay sions and depositions. ÉtÉ 2008 CCCA Canadian Corporate Counsel Association 15