Prepare for a Storm When the Sun is Shining

By Michael Lentz, Wagonheim Law Attorney

Independence Day tomorrow gives me a good reason to look back on the constitutional uproar of the past week. We’ve had two significant constitutional events: First, the Supreme Court decided National Federation of Independent Business v. Sebelius (the case challenging the constitutionality of President Obama’s healthcare plan), then Congress held the Attorney General in criminal contempt for failing to turn over documents and information in response to a subpoena.

The ‘net and the airwaves have been (and will likely continue to be) full of punditry purporting to explain the Sebelius decision and its effects.[1] Predictably, opponents of the law decry it as a harbinger of the end of Western Civilization, an affront to all things good and decent, etc. Supporters are no more measured in their praise and adulation. Perhaps we’ll wade into that fray at some point, but for now, I’ll leave the din to others.

The Attorney General’s kerfuffle is, at least for the purposes of this blog, at least as noteworthy, and much easier to digest. In short, the Attorney General has refused to release to Congress documents and e-mails relating to the Justice Department’s Operation Fast and Furious program. The Attorney General testified before Congress that, in essence, he knew nothing about the operation while it was going on. Two Congressmen, in particular, appear to believe that the Attorney General lied to Congress, and have set out (at least in theory) to prove that. At issue are several thousand pages of justice department documents that have been subpoenaed by the Congress, over which the President asserted Executive Privilege.

The contempt proceedings merely highlight something that trial lawyers experience (and try to explain to our clients) every day. Far too often, the great majority of effort (and therefore money) spent in civil litigation is spent in discovery, trying to find out everything that our opponent knows, then eliminate or minimize facts that harm our client, and introduce or maximize facts that help.

Sometimes disagreements over who gets to see what, and when, or who gets to say what, and when, are minor squabbles. Sometimes, they’re all-out wars on which the success or failure of an entire case can turn. Discovery can be expensive under the best of circumstances; unchecked discovery by overzealous counsel can be prohibitively so. As a business owner, you can help minimize the damage by preparing for a storm when the sun is shining. Don’t wait to find yourself in a major lawsuit (either as defendant or plaintiff) to think about what you’ll do in one. Some steps that you can take in advance, easily and relatively cheaply, are:

  • Making sure that each employee who needs to use e-mail has a company e-mail address. Strongly discourage employees from using a company e-mail address for personal matters and from using a personal e-mail address for business matters.
  • Knowing where and how your company stores information – all information, not just the information you use every day.
  • Knowing who at your company can locate, access and (if necessary) transfer all of that stored information. If there’s only one person who fits this description, add at least one more. Crises have a habit of arising right in the middle of somebody’s three-week cruise around the world.
  • Considering adopting a formal, written policy regarding document retention and destruction. Such a policy can be extremely helpful in retaining, maintaining and organizing information. A note of caution, though – having a policy and not following it is usually worse than not having the policy to begin with.
  • If your business legitimately needs to maintain some information as completely confidential, even in the face of a subpoena from an angry lawyer, making sure that you can explain, in words that someone who knew nothing about your business could understand: (1) exactly what information needs to be kept confidential, (2) why every piece of confidential information must be kept confidential, and (3) what information (if any) you can release.

[1] A good one-paragraph explanation of the decision can be found here, with a link to the full text of the Supreme Court’s 193-page opinion here.

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