Day 2 of SuperConference started with two intriguing keynote panels: “Corporate Governance” and “Judicial Roundtable on e-Discovery.” Each offered attendees insight into the general counsel’s evolving role as a business partner and active participant in the discovery phase of litigation.
During “Corporate Governance,” panelists discussed in-house counsel’s function as the conscience of a company. Ensuring executives comply with ethical standards is a tough but necessary obligation.
“It’s really about doing the right thing when the heat is on,” said A.B. Cruz III, chief legal officer and corporate secretary of Scripps Networks Interactive Inc.
Anastasia Kelly, a partner in DLA Piper’s white collar and corporate crime investigations practice, noted that one of the biggest challenges she faced during her in-house career was communicating her role as the company’s conscience to her business colleagues. “How do you do that without making it look like a power grab?” she said.
Mary Ann Hynes, senior vice president, general counsel, corporate secretary and chief compliance officer of Corn Products International, Inc., said that although it’s tough, in-house counsel must be inquisitive and have great investigative skills to defend the company’s reputation.
“An enormous portion of your reputation is based on corporate governance,” Hynes said, noting that a company can lose 2 percent of its value per year for a reputational error, according to data from the Reputation Institute, an organization that assists companies in measuring and managing their reputations.
Four judges discussed the complexities of e-discovery during “Judicial Roundtable on e-Discovery,” which was moderated by Patrick Oot, special counsel for electronic discovery at the Securities and Exchange Commission.
Judge Peter Flynn of the Circuit Court of Cook County, Illinois, Chancery Division, noted that inside counsel should be clear about communicating the true cost of electronic data storage and accessibility in order to help judges understand the challenges they face in preservation and discovery. “We need to be better educated about real costs,” he said. “Most judges don’t have that much business experience with respect to ESI.”
According to Judge James Francis of the U.S. District Court for the Southern District of New York, the Rules Committee is considering a few options in dealing with the cost of preservation, including providing a prelitigation forum for counsel to discuss the scope of preservation, limiting scope by rule and putting a time limit on preservation. “We judges recognize that this is a costly and risky proposition for corporations,” he said.
Judge Nan Nolan of the U.S. District Court for the Northern District of Illinois emphasized the importance of cooperation among counsel with respect to decisions about preservation. “If you demand that your outside counsel read the Sedona Cooperation Proclamation and tell them that this is how you want them to act, I would bet that your legal bills would go down 50 percent,” she said.
Judge David Waxse of the U.S. District Court for the District of Kansas, said in many cases, electronic search and analysis technologies are more accurate and less costly than human review, and using such technologies cooperatively can help further reduce costs. “Get an agreement on what technology both sides will use, and share the cost,” Waxse suggested.