In this series, I consider how the high stakes of e-discovery have transformed early case assessment into a data management exercise and suggest how in-house counsel can work with trial counsel to ensure that e-discovery issues do not divert attention from strategic case evaluation. In this column, I discuss some of the risks that result when the “custodian” interview becomes the primary initial contact between outside counsel and your company’s potential deponents and trial witnesses.
Of course, the witness may never directly raise any of these questions, but the longer they go unanswered, the greater the risk that the witness will lose confidence in trial counsel and become the sort of mistrustful, rogue witness who unwittingly undermines the company’s case. Establishing trust requires that the initial interview and every material communication thereafter with outside counsel is led by an experienced trial lawyer who has a strong grasp of the case and who will be a continuing point of contact for the witness through depositions and trial preparation.
The attorneys who handle e-discovery custodian interviews are often the exact opposite of what is needed to build this relationship—specialists with a narrow technical proficiency who have no role in broader case assessment or strategy development, who make requests of the custodian that often seem unduly burdensome and unrelated to the “real” issues in the case and who will disappear from the team as the case proceeds to depositions and trial. When these project management specialists are the first point of contact between a potential testifying witnesses and your company’s outside counsel, the result can be at best a missed opportunity and at worst an antagonistic witness relationship.