While it may seem self-evident, effective and continuous communication between the relevant stakeholders is a key aspect to successfully managing e-discovery in response to litigation. This is particularly true given the tasks that must be completed, the often short deadlines for completion of these tasks and the potential consequences of failing to comply with the e-discovery obligations under the Federal Rules. Although this principal applies to both plaintiffs and defendants, it can often be more important to defendants who received little or no advance notice of the impending lawsuit.
In-house stakeholders include corporate counsel responsible for overseeing the litigation, the company’s IT and records departments and individual custodians of relevant electronically stored information (ESI), among others. This group’s role typically involves identifying relevant custodians and their electronic files, identifying other counsel for purposes of privilege screening, identifying shared drives and databases, locating back-up tapes or other archived storage, determining whether archived data is reasonably accessible and identifying any important issues to help focus the ESI collection and review. This group is particularly important to e-discovery in response to litigation because its members are the most likely to have the internal knowledge necessary to respond to ESI demands.
Outside stakeholders include the lead attorney responsible for litigation strategy, the attorney(s) acting as a liaison between the outside litigation team and the client, the outside firm’s own IT specialist and the designated e-discovery liaison with opposing counsel, among others. This group’s role typically includes:
- Identifying key litigation issues
- Determining what information needs to be collected in response to discovery requests
- Being familiar with the court’s e-discovery rules
- Working with the in-house group to collect ESI
- Reviewing ESI for relevance and responsiveness
- Working with opposing counsel on exchanging ESI
- Explaining the e-discovery efforts to the court when necessary
This group’s importance is tied to its primary responsibility for ensuring that relevant ESI is collected and produced in accordance with the applicable rules.
A contract review firm can become an additional stakeholder when retained for the litigation. This group includes the project leader, the contract firm’s IT specialist and the review team, among others. This group’s role typically includes ensuring that the document review guidelines for the review team are manageable and understandable, assisting in the ESI collection efforts, reviewing the ESI and ensuring the review is completed within the required timeframe. This group is important because, when managed correctly, it can theoretically handle at least some of the e-discovery efforts at a reduced cost to the client.
Given these different stakeholders and their sometimes overlapping responsibilities, it is hardly surprising that things can (and do) go wrong during the e-discovery process. Having been involved in numerous e-discovery efforts in complex IP litigation over the years, I am confident that “Murphy’s Law” applies. Typical errors can include missed custodians, overlooked databases, overly broad search terms that provide irrelevant “hits,” the review team getting a 500 GB hard drive of ESI two weeks before a cut-off date, inadvertently missing privileged documents or names of attorneys who authored or received privileged communications, and other errors that require the legal team to redo some or all of the e-discovery.
Although mistakes can happen despite careful planning, many of these problems are the result of communication breakdowns, either within or between the groups of stakeholders. While it might be tempting for busy in-house counsel to delegate the e-discovery process to others in the company and stay “out of the loop,” my personal experience has convinced me that there are many benefits to in-house counsel actively participating in the process, particularly where there is a good communication network between the groups of stakeholders. That involvement and communication can help focus the ESI collection and review process at an early stage of the litigation. It also can help address any issues that might come up as discovery proceeds, and help ensure that reasonable efforts were made to comply with the applicable e-discovery obligations.
In addition to the obvious cost benefits of having an efficiently managed project, effective communication can improve the defensibility of the company’s efforts. It is harder for a court to find fault when a mistake is made despite the reasonable and documented efforts by the party.
While good communication is important, there is no communication network that necessarily works best in all situations. The best approach will normally be on a case-by-case basis based on the identity of the stakeholders, the issues raised by the litigation and the practical issues associated with identifying and collecting relevant ESI.
At minimum, in-house counsel should consider having initial meetings between the stakeholders (in person or telephonically) at the early stage of the case. This will help ensure that the stakeholders understand the relevant issues, the scope of what ESI exists and its accessibility and what important deadlines have to be met. It also helps in setting up lines of communication moving forward, making sure everyone understands what is expected and implementing other project management details. Initial meetings, where possible, within each stakeholder group and between groups are equally important to developing an e-discovery plan.
Once the project is underway, periodic meetings and other communications are also recommended. E-discovery projects are rarely static and adjustments are often necessary. Effective communication throughout the process will help the stakeholders react to unexpected events, correct any inadvertent mistakes or oversights at an early stage and continue to ensure that the project is being conducted in an as efficient and cost effective manner as reasonably possible. Equally important for in-house counsel is the ability to periodically update company management on the project and manage their expectations, as well as minimizing any unexpected surprises.