This is the fourth column in a series addressing the challenges of preserving trial counsel’s essential role in early case assessment in the era of e-discovery. View the first column here, the second column here and the third column here.
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 the importance of including senior trial counsel in initial contacts with key custodians in order to identify the potential high-risk custodians within your company.
Second, trial counsel may be able to elicit responses in witness interviews that an employee may be reluctant to share with in-house counsel. The conversations between in-house and outside counsel about the back story for the case often will include some discussion of which witnesses should meet privately with only outside counsel for at least some part of the initial witness interview, and what topics should be explored in that time.
Third, senior counsel has the judgment to know whether and how she may be able to win over the potential rogue witness. Few high-risk custodians are truly committed to obstructing discovery. Instead, most rogue custodians strike their own path because they lack confidence in outside counsel’s ability to manage the litigation in a manner that suits the custodian’s objectives. For the custodian acting solely out of misguided loyalty to the company, trial counsel’s message may be relatively straightforward, explaining how the witness’s cooperation with the direction of counsel will contribute to a successful litigation outcome, and modulating that message to address the business impacts of greatest concern to the witness. Where the witness is pursuing a personal agenda to protect his career or reputation, counsel’s challenge is to minimize that conflict and persuade the witness that charting his own path carries even greater risk. There are some witnesses who are so compromised that this sort of reassurance is simply impossible, and an unpleasant conversation involving both the witness and in-house counsel may be the only way to obtain reasonable cooperation. The senior counsel’s ability to make these distinctions is part of what your company is paying a higher hourly fee for and one reason why senior trial counsel should be an active participant in initial case assessment.