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 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.