What are the e-discovery skills you should demand from retained litigation counsel? Let’s see if we can boil the answer down to seven key principles.
1. Demand e-discovery expertise from the top. E-discovery starts at the top of the law firm litigation team, not the bottom. Don’t pay top dollar to trial attorneys who offload their e-discovery to junior partners, who then delegate the e-discovery to associates, who then pass off the e-discovery to litigation support professionals. The partner trying the case needs to take responsibility for a quality e-discovery practice. If that partner does not “do” e-discovery, the case will devolve into a fractured world of compartmentalized skills, where the most important case information—the data—is viewed as alien territory by the most important member of the team, the actual trial attorney.
Consider this example: Imagine it’s the year 1938, when deposition discovery suddenly became available. Do you want litigation support professionals taking the depositions in the case? Of course not! Depositions must be taken by counsel who understand the impact of the deposition on the trial. It is the end game that is critical, but it is the right beginning that makes the end possible. All litigation activity has that goal, in 1938 or 2013. Trial counsel must know how e-discovery will advance the case. Trial attorneys possess many skills—cross-examination ability, courtroom presence, storytelling, etc., but these skills are all predicated on knowing the case documents. Years ago, litigators and trial attorneys reviewed the paper documents over and over, looking for new angles and insights. Today, a trial team that cannot do the same with electronically stored information (ESI) is handicapped.
E-discovery is a critical litigation skill. Does your trial team really understand how to search data? Do they understand metadata and its value? And here is the bigger question: Can your trial attorneys handle data themselves, or must they find professional litigation support staff for every search on this or that new issue, topic, theme or question? If so, you have tons of extra cost and inefficiencies, to say nothing of potentially unprepared trial counsel.
2. Demand an e-discovery budget. E-discovery budgeting skills are critical, and the best firms never leave it out. Yes, retained counsel are (rightfully) focused on winning, but litigation also includes the management of budget and risk. A bad result is certainly damaging, but more often the bigger threat is out-of-control and surprising litigation costs. E-discovery is a key cost driver, ergo, retained counsel must engage in e-discovery budgeting. Demand to see retained counsel’s e-discovery budget templates and routine reporting procedures, and ask if they provide real time access to e-discovery case metrics. A blown budget, announced three months later in a regular billing cycle, is too late (and an invitation to sticker shock).
3. Demand trial counsel’s control over the e-discovery process. Retained counsel must know how to negotiate with the opposition to minimize e-discovery risks and ensure that the opposition is locating and producing the important documents. Too often, retained counsel on both sides are uncomfortable (and undisciplined) with e-discovery negotiations, and many counsel would rather file motions after only a modest negotiation effort. Of course, sometimes the opposition needs to be clubbed, but that’s generally an expensive and risky choice (as satisfying as it otherwise might be). Trial counsel should to be able to telephone opposing counsel and solve the key e-discovery issues with confidence and reliability. Most early e-discovery protocol disputes arise out of miscommunications, ignorance and distrust, so find out how many Rule 56(f) conferences your trial counsel has attended, and request copies of the reports to the court. E-discovery negotiation skills are a valuable talent, and attorneys who have them won’t hide the fact that they do.
4. Demand e-discovery proportionality. Proportionality controls e-discovery. As the new proposed federal e-discovery rules amendments recognize, “relevance” is necessary but no longer sufficient. Retained counsel should be experienced in implementing e-discovery proportionality controls. Ask for examples of how retained counsel have kept e-discovery costs within budgets dictated by proportionality. The first question is: “How much e-discovery can this case afford?” Without an agreement or court directive answering this question, all negotiations tend to degenerate into “everything relevant,” and that way lies madness and exorbitant cost. Retained counsel must know how to make sure this does not happen.
5. Demand e-discovery-based judgment. Retained counsel should be able to promptly assess a case’s strengths and weaknesses. Retained trial counsel should be experienced in quickly interviewing key players and testing the company’s story against their ESI. The key witnesses and data will provide a good, if not perfect, picture of the dispute. Onsite, retained counsel should be able to export data from relevant locations to e-discovery software, and to search and explore the data while questioning witnesses.
6. Demand creative e-discovery analysis. Great trial attorneys see documents in non-obvious ways that suddenly present new patterns and insights. That skill struggles to surface if the trial attorney is alienated from the data. Trial attorneys’ creative impulses are muffled when the trial attorney is simply handed a stack of documents that bubbled up from a document review and mostly consisted of tagging documents as either responsive or non-responsive. Good litigators and trial attorneys must be able to follow their insights and exhaust their creativity, but retained counsel can’t do that without deep skills in handling ESI. Retained counsel should to be able to explore a creative insight or theory by digging into and questioning the data, yet this questioning process is frustrated and belabored if trial counsel does not or cannot directly handle ESI. Trial counsel need the ability to explore the data and should relish the opportunity.
7. Demand experience from the entire e-discovery team. Retained counsel must have experienced project managers to interface with the law firm, vendors and client. Project managers bring experience, forms, templates and a decision matrix check list illustrating risk, cost and benefits of every decision related to preservation, collection, search, review and production. Look for retained counsel with skilled e-discovery project managers. Interview the e-discovery project manager, not merely the trial counsel.
In short, demand retained counsel who do not suffer from “dataphobia.” If you’re not sure how to begin, here is a telling question you should ask: “What do you think about e-discovery, counselor?” If counsel frowns and answers, “Trouble, expense, and burden,” then you may have the wrong counsel; if the answer is a perky and engaged, “It’s the best and quickest way to get to the truth,” you likely have the right team.