Whether as a business advisor or a litigation manager, the value of in-house counsel is to guide their company clients through a multitude of legal obstacle courses, with the primary purpose of managing the legal risk while enabling the client to achieve its business goals. Part and parcel of that value is counsel’s ability to be proactive and prepared for risk as it arises. In the context of litigation, where risk can be realized in a very public manner through court orders and negative press, investing time to prepare themselves and the company to proactively (not reactively) manage the litigation process before litigation ensues is of the utmost importance. To do this effectively, in-house counsel should consider the following:
- Data mapping. Every in-house counsel should know what information (data) the company and its employees have and where it is located. Emails and documents are the most common forms of data used by a company. Consideration, however, should also be given to data contained in instant messages, text messages, employee smartphones, employee hard drives, human resource documents, audit records and the various clouds used for storage or sharing by the company. Overwhelming? It can be to start, but in the end this intricate process and the knowledge gained through work with the company’s technology department and business units will serve in-house counsel well if and when the threat of litigation arises. Performed properly, there should be no more scrambling to determine the who, the where, the when and the how in the event litigation arises. That information will be readily available.
- Records retention and management. Development and implementation of a records retention and management program should be the logical next step. With data identified, a records retention program serves as the starting point for determining what data is necessary (and what data is redundant/obsolete) for the ongoing operations of the company, both in terms of business and legal operations. Additionally, the program should define who within the company is responsible for the specific subsets of data identified during the mapping process. Along with the data map, the existence of a well-thought-out records retention policy that is adhered to by the company will make life much less complicated for in-house counsel and their internal clients when the time comes to secure the information needed to manage the company’s litigation risks.
- Early assessment. When a dispute arises, the last thing a company (and counsel) should do is back-burner the dispute until it demands attention. Acting proactively to investigate and assess the company’s position through witness interviews and review of the relevant documents allows in-house counsel and their internal clients to assess and make informed decisions to better manage risk associated with the dispute. Additionally, and equally as important, early assessment (when properly performed) gives the company a head start in the dispute through identification of the witnesses, data, and documents that may be needed for the defense or prosecution of that suit. With the data map, counsel will easily navigate through the scores of information needed for an investigation.
- Litigation hold processes. As a general rule, where litigation is reasonably anticipated, there is an obligation by the parties to that litigation to preserve information that is potentially relevant to that litigation. Development and implementation of a legal hold process will help the company meet that obligation by making sure that the company personnel with information that is potentially needed, or at issue, are on notice of the dispute and taking steps to preserve (and not destroy) that information, be it emails, documents, text messages, or otherwise. To ensure compliance, it is incumbent on in-house counsel to grab the reins on implementation and follow up with the personnel subject to the hold to make sure the hold is complied with and no spoliation occurs. Leaving the reins in the hands of several individuals across the business can be quite dangerous.
- Protecting the attorney-client privilege. Importantly, the company and its employees need to be aware of what is protected by the attorney-client privilege. Not all discussions with in-house counsel are protected; however, those relating to legal claims against the company should absolutely be protected. In discussions with internal clients, in-house counsel should make clear that in light of the claim against the company, they need to be sure not to disclose any information that would result in the waiver of the privilege. As an added precaution, in-house counsel can go through an “Upjohn process” and then clearly label each appropriate communication with “ATTORNEY-CLIENT PRIVILEGED.”
In-house counsel are appointed to act as the trusted legal advisor for and to their company. A large part of that role is to ensure the company’s defenses are properly equipped for an attack during a dispute. By enacting a few pro-active measures, counsel can assure their internal clients that the company is ready to stand fast, manage the risks, and reduce exposure.