In some instances, despite the implementation of effective risk management practices discussed in the prior two articles of this series, litigation is unavoidable. In these situations, in-house counsel can provide value to their organizations by managing the company’s litigation portfolio to successful resolution, i.e. lower spend, shorter time to resolution, and more favorable outcomes.
The discovery process, however, is often where a company’s best laid plans can be derailed. Why? Discovery is a two way street, and you’re not completely in control. Dealing with the opposing party and counsel, and their demands, can be an expensive proposition. In-house counsel should consider the following strategies to take charge of what they can control and successfully navigate the discovery process:
Know what you want and why you want it. A “cast the net broad and see what you catch” approach to discovery is at times warranted, but is often inefficient and ineffective. The opposing party typically responds with a litany of objections. The ensuing discovery dispute can be costly, with outside counsel billing for their time to battle opposing counsel while figuring out what they really need. This approach often is simply unnecessary. When distilled to their essence, most disputes involve a handful of witnesses testifying about a discrete number of issues represented by a finite universe of key documents. It is important for in-house and outside counsel to work together at the outset to identify the following: the key legal and factual issues that will be outcome determinative; the key witnesses; and the categories of documents relevant to those issues. Conducting an early case assessment will allow in-house and outside counsel to clarify the issues and tailor the discovery efforts to get the critical information needed in a quick and cost effective manner.
Be proactive with preservation and collection. The value of proactive document and data preservation efforts cannot be over-emphasized. By implementing data mapping, records retention and litigation hold practices addressed in previous articles in this series, counsel will know where the documents and data are and will be armed with the information needed to make smart choices in working with the opposing party on an e-discovery protocol and production plan. Counsel will also have the information needed to effectively defend company decisions on preservation and collection efforts in the event of a dispute. Knowledge is truly power here. Time invested on these issues at the outset will be rewarded through minimizing the costs of having to reactively respond to the opposing party’s discovery and e-discovery demands and reducing the risk of the company being held over the proverbial discovery sanction barrel.
Be consistent. The discovery process is subject to abuse and can be used to extort an undeserved victory in litigation. Companies facing repetitive litigation of similar cases are particularly vulnerable to efforts by opposing counsel to engage in “gotcha” tactics that seek to divert the court’s attention away from the merits of the case and onto alleged “discovery abuses” by the company. Discovery motions raising perceived inconsistencies in a party’s responses or inconsistent positions on the discoverability (or existence) of certain information in prior related or similar litigation can stir the ire of a busy trial court judge who has little time to referee discovery disputes. To avoid these traps, it is essential to know the company’s litigation history and have practices and procedures in place to ensure accurate and consistent responses. If it is necessary to take seemingly inconsistent positions from past discovery responses, be prepared to offer a valid and convincing explanation to the court to maximize the company’s chances of avoiding sanctions. If in-house counsel is unable to do so, consider alternatives to avoid or resolve the dispute.
Be responsive. A sure fire way to drive up litigation costs and protract the discovery process is to respond with a non-response. There certainly are discovery requests that are so vague, broad or burdensome where objections alone may be warranted. While it is critically important to assert and preserve objections to such requests, in most situations it also is possible to determine the permissible scope of the request and provide a narrowly tailored response. By providing meaningful, but reasonably tailored responses, counsel may avoid a dispute altogether. If not, this approach allows counsel to demonstrate good faith and reduce the chances of incurring sanctions in the event the objections are not sustained by the court.
Be strategic with discovery motions. Experienced in-house and outside counsel know that busy trial judges loathe discovery motions. Such motions are costly and distract the parties and the court from the merits of the litigation. By taking the steps outlined above, in-house counsel will improve their ability to avoid unnecessary and risky motions to compel. When an agreement with the opposing party is not possible, assess the importance of the objection at issue to the company’s goals and objectives. If the legal team determines that the battle is worth the cost, go on the offense by filing a motion for protective order rather than finding oneself in the posture of defending a motion to compel. This will allow counsel to frame the issue and increase the likelihood of a positive outcome.
In general, common sense should guide in-house counsel as they work to ensure that the company’s case is not bogged down in a costly discovery process that adds to the costs of litigation, both in defense dollars spent and productivity lost in your company; especially, when the “all hands on deck” call has been made to deal with a discovery issue that could have been avoided. These strategies, while not exhaustive, can assist in-house counsel in taming the discovery monster as a part of the proactive management of the company’s litigation.