This is the second column in a series addressing the challenges of early case assessment in the era of e-discovery. View the first column here. In the first column, I described how the high stakes of e-discovery have transformed early case assessment into a data management exercise, with the logistics of preservation, collection and review taking precedence over trial counsel’s traditional role in developing and implementing a successful litigation strategy. In this column, we consider how in-house counsel can ensure that the nuts and bolts of e-discovery do not distract your company’s outside counsel from the most critical task in early case assessment—finding the path to a successful litigation outcome for your company.
The numerous headline-grabbing sanctions awards for corporate e-discovery breaches have no doubt served a beneficial purpose by heightening in-house counsel’s attention to implementing an early and effective litigation hold. Unfortunately, the risk of sanctions also has distracted in-house counsel from what should be the primary focus in all stages of litigation—developing and executing a strategy to win the company’s case. Your company’s outside counsel are client service providers, and as in house counsel, you are the face of the client. If your primary focus in the initial stages of litigation is e-discovery risk management, then your trial counsel will follow your lead to deliver the services you value most. However, nobody ever won a case by building a perfect litigation hold, and it is your job as in-house counsel to ensure that your senior trial counsel deliver the services that your company values most—a winning litigation strategy.
The reality of contemporary complex litigation is that in-house counsel’s initial attention may be occupied with e-discovery risk management no matter how much you might prefer to focus on broader strategic issues. Implementing a litigation hold in even a moderately complex case may require substantial effort by in-house counsel to liaise between outside counsel and potential electronic data custodians and to retain and supervise the work of one or more e-discovery vendors. When in-house counsel’s resources are stretched thin, the challenge is to maintain trial counsel’s focus on winning the case, even while your attention is directed elsewhere.
The good news is that these two tasks—proactive management of e-discovery and trial strategy—do not have to be pursued on separate, conflicting tracks. As in-house counsel, you can help maintain trial counsel’s focus on the big picture case issues by establishing some basic parameters at the outset of the case.
1. You should ensure that your company’s trial counsel interview the key fact witnesses before outside counsel begin custodian interviews for e-discovery case assessment. Especially in litigation where in-house counsel already have extensive background on the events giving rise to the suit, you may be tempted to skip this initial stage and may suggest that trial counsel should rely on you to provide a download of the relevant facts. However, one of the most critical steps in initial case assessment for any significant litigation is the face-to-face communication between trial counsel and your company’s key fact witnesses. Initiating that process as soon as possible will ensure that trial counsel are engaged and focused on key strategy decisions before their attention is diverted by the minutiae of e-discovery, and that your company’s trial counsel have the necessary insights into the case to devise an e-discovery plan that complements and contributes to your company’s broader litigation strategy.
2. In-house counsel should require that a member of the trial team participates in the e-discovery custodian interview of any likely deponent or trial witness. This may seem to contradict the previous objective to avoid distracting your company’s trial team from their strategic focus. However, any substantive contact with your company’s likely deponents, especially early in the litigation, is an important communication that warrants the involvement of trial counsel. Witnesses who have had no prior opportunity to communicate with outside counsel may provide information or raise questions or concerns about the litigation that trial counsel will need to hear and explore. These witnesses will also look to outside counsel to explain how their knowledge of the dispute relates to the company’s defenses and to explain “what this case is all about”. This narrative is a critical part of witness preparation that happens long before depositions are scheduled and cannot be entrusted to an attorney or consultant who has only a limited understanding of your company’s case. These initial contacts between the witness and outside counsel set the tone for all future communications and deposition and trial preparation.
3. In-house counsel should set an early deadline for trial counsel to present their initial assessment of case strategy. Litigators work by deadlines, and the best way for in-house counsel to ensure that the logistics of e-discovery do not distract outside counsel from devising and implementing the company’s case strategy is to give trial counsel a deadline that makes the strategic assessment as immediate and as pressing a concern as the adequacy of the company’s litigation hold.
These guidelines assume that your company actually has identified the attorneys who will be responsible for trying the case at the outset of litigation. Of course, the reality is that your company’s case probably will settle before trial, just as the vast majority of civil disputes are resolved without trial. However, it is an often-repeated maxim that the best way to avoid trial is to be trial ready. The first step in trial preparation is identifying the counsel with personal responsibility for presenting the case at trial and tasking them with leading your company’s trial preparation. No matter how pressing your concerns as in-house counsel to ensure your company’s compliance with its e-discovery obligations, your primary task as in-house counsel remains selecting, engaging and directing the skilled trial counsel who will work with you to chart the path to victory for your company.