In previous columns, I have considered how the addition of an e-discovery consultant to your company’s litigation team can materially strengthen your company’s defense in complex litigation. In this column, I address the perception that retaining an e-discovery consultant may conflict with your company’s objective to develop and utilize in-house resources.
As in-house counsel, you probably have been an advocate for increasing your company’s internal e-discovery capabilities. Does retaining an outside consultant undercut the message you have been delivering? The reality is that an outside consultant can complement your in-house resources and allow you to utilize those resources more effectively.
If your company has made the investment to develop its own in-house e-discovery team, then the role of the e-discovery consultant in complex or highly contentious litigation is both to augment the existing resources and to mitigate the litigation risks created by reliance on company employees for collection and review. Corporations are most likely to rely on in-house resources in low-value, repetitive litigation where the integrity of the e-discovery collection and review are unlikely to become contentious issues.
As a dispute moves outside this comfort zone, relying solely on in-house resources creates greater risk for your company. Working with an outside consultant can expand the number of cases in which your company can safely use its own personnel for collection and review without exposing the company to undue risk. The judicious retention of outside consultants is the natural next step in expanding your company’s reliance on internal e-discovery resources.
For example, the outside consultant can act as an affiant or testifying witness in complex discovery disputes to vouch for the completeness of your company’s e- discovery. Although this role can be addressed in routine litigation by the leader of your in-house team, in complex or contentious litigation, your company will benefit from having a non-party with greater independence fulfill this role.
In a high-value case where your company’s employees have a clear economic stake in preserving the financial health of their own employer, you should not rely solely on these employees to attest to the completeness of the production. An outside consultant who is responsible for planning, overseeing and auditing the collection and review process can help your company complete a defensible production while using in-house resources.
Similarly, in-house personnel who are accustomed to addressing the same categories of files in repetitive, low-value litigation may be challenged to effectively address a more complex litigation. Simply having a fresh perspective with broad experience to provide input on the e-discovery work plan can protect your company from costly mistakes.
Working with the outside consultant also should be viewed as a learning process for your in-house team. In-house counsel should continually reassess the technical competence of the company’s internal team as they work on increasingly complex matters and develop additional experience.
These roles need to be clearly defined at the outset of the engagement to ensure that you retain a consultant who can work effectively with your in-house team. Ideally, your in-house e-discovery manager should participate in the selection of the consultant so that you have her buy-in on the hiring decision and you can begin the engagement with clear lines of communication already established.
Winning your IT manager’s buy-in also requires articulating very clearly why the company is retaining the consultant so that your internal resources do not view the consultant as encroaching on their duties. If you explain that, because of the nature of the litigation, you expect the consultant to have extensive contact with opposing counsel and to be required to give testimony at a deposition or hearing, then most in-house IT managers will gladly relinquish these tasks. They must understand, however, that the trade-off for avoiding these unpleasant tasks is maintaining clear communication with the consultant throughout the engagement and cooperating fully with her requested quality control and audit protocols to ensure that the consultant can testify effectively when called upon.
As in-house counsel, you should recognize that this type of engagement requires a consultant with a very strong skill set. In addition to having the obvious technical knowledge and practical experience, the consultant needs to be an adept manager and communicator to work effectively with your in-house team, as well as an articulate witness. Consultants with all of these skills may be hard to find. In addition, you cannot offer the inducement of a large case budget with extensive hours to be billed by other timekeepers from the consultant’s firm, since the objective of this model is to leverage your company’s own resources.
Making this type of engagement work to the satisfaction of all parties probably means holding out the inducement of relationship building for the consultant’s firm, both with your company and with your retained counsel. In other words, the consultants who will be most receptive to your offer will be the consultants who see the prospect of other, more lucrative work with your company and with your outside counsel in the future. Keeping your company’s retained professionals motivated, efficient and willing to deliver more for less is of course one of the primary duties of in-house counsel in the current economic landscape, and e-discovery consultants are no exception.
