Managing litigation presents a whole new set of challenges and responsibilities to an in-house generalist’s already crowded plate. This article series introduces the art of litigation management from the in-house perspective with key pointers and tips for the initial phases of litigation. In Part 5, we looked at the various types of discovery. In the last part of this series, we provide discovery best practices and some closing thoughts.
At a high level, keep the following things in mind as you navigate the thicket of discovery:
1. It is critical to ensure you and your counsel (and in some cases, outside counsel) agree on the scope and approach to e-discovery at the outset of the discovery process. Ensuring there is agreement on systems excluded from e-discovery, search terms to be used, etc. as part of an e-discovery agreement between the parties can eliminate a lot of uncertainty (and cost) from the discovery process around electronically stored information (ESI). For matters with large scope and complexity of the discovery, discuss with your counsel whether predictive coding would be useful in connection with ESI. Predictive coding refers to the use of technology to assist in the review of potentially relevant and responsive documents. Technology-assisted review (TAR) is sometimes used as a substitute for individuals reviewing documents, although this is not recommended because of the privilege issues that accompany it when used alone. Depending upon the amount in controversy, the right approach often harnesses an appropriate amount of technology to expedite the review process, but includes actual review of documents as the final arbiter of whether documents are in fact relevant and responsive.
2. Spend time at the outset of discovery to ensure you have the right search terms for any e-discovery queries, to create a list of the areas/systems to be searched, and to create a list of the document custodians with whom you may need to speak. You don’t want to have the company waste time and effort re-running queries through supplemental pulls of data, re-running searches, or following up with newly identified custodians late in the discovery process if you can avoid it.
3. Pay attention to (often extensive) definitions in the discovery requests. They can help determine search terms and scope. But they also often create ambiguities and vagaries that must be avoided because they create undue or improper burdens.
4. Watch out for non-responsive internal business resources. Reasons for a lack of response can range from being too busy with other projects to a fear of getting involved in the litigation. You may need to partner with internal resources to both help get them comfortable with the company’s need for their involvement in the litigation, while reminding them that providing assistance to the legal team is required by their employment.
5. Consider whether to use litigation counsel, a third party e-discovery firm, or a mix of both to achieve the best balance between cost efficiency and work product.
6. Consider third parties who may have helpful information to you, and the costs, benefits and effects on business relationships from issuing subpoenas.
7. Review local discovery rules, and watch for differences with the federal rules. Local rules often set limits on discovery responses and timeframes to respond, although all are subject to extension based upon professional courtesies. Pay close attention to definitions, especially words defined in local rules; the other side may rely on incorrect or other definitions of common words which will require objection.
8. Consider objecting liberally in discovery to protect one’s rights, but only where appropriate.
9. Discovery requires a reasonable search for information, not Herculean efforts. If your client does not have sufficient information to answer discovery requests, don’t guess.
10. It’s often necessary to be very technical in reading discovery requests—your client should respond to what the other party asks, not what you think or reasonably believe the other party meant to ask.
11. Once potentially relevant documents have been identified, they need to be “de-duplicated” in an appropriate way to ensure you don’t produce 10 copies of the same email or document, and reviewed for both relevance and privilege (e.g., work product, attorney/client, etc.).
12. Before any information is produced to the other party, ensure there is a sufficient protective order in place that will protect confidential business information from disclosure or use outside the litigation.
The in-house counsel’s role in litigation management extends well beyond monitoring and reporting what outside counsel does to handle the case. As the intermediary between the business and outside lawyers, in-house counsel must keep a foot in both worlds and know how to draw upon the expertise of both to achieve litigation objectives efficiently. Being unfamiliar with the range of options and responsibilities in litigation increases the risk of an unfavorable result, surprises in outside counsel’s bills, and a client who is unhappy with the outcome—and possibly unhappy with you. Knowing your options and responsibilities, and using the key pointers and tips provided in this series of articles, will help equip you with the tools to achieve the optimal results possible for your client in any litigation matter that falls onto your plate.
Spoliation and the long-awaited federal e-discovery rule changes
Upsetting the status quo: How disruptive innovation affects in-house discovery technology
Litigation management for the in-house generalist: Discovery
The articles on our Website include some of the publications and papers authored by our attorneys, both before and after they joined our firm. The content of these articles should not be taken as legal advice.