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Feature Stories In-House and Outside Counsel Working Together to Prepare for E-Discovery What's worse than receiving an expansive electronic discovery request from your opposition in a major case? Being caught unprepared for that request. With the establishment of a collaborative relationship between in-house and outside counsel, companies can map out a plan for electronic discovery preparedness. Taking time to understand the perspective of your counterpart in electronic discovery will help you focus your efforts where they are most needed. "Every litigation matter or investigation I've been involved with in the past twelve to eighteen months has had an electronic discovery component," said Mitch Zamoff, a partner in the Litigation Group at Hogan & Hartson LLP in Washington, D.C. "And several of those have involved significant disputes over electronic discovery or considerable discussion about the adequacy of one or the other party's electronic discovery efforts." Some practitioners saw the shift to electronic discovery even earlier. "About three years ago, we started seeing electronic discovery in our cases," said Tom Skelley, Director of Practice Information Services at Covington & Burling in Washington, D.C. "At that time, electronic discovery played a part in about three or four cases each year. Now it's almost impossible to count-it seems that we get one or two cases every week involving electronic discovery." As law firms notice this sharp increase in the prevalence of electronic discovery in their practice, many corporate clients wrestle with the implications. "Some companies have been quick to recognize the changing climate of discovery, but others seem to be coming along a bit more reluctantly," added Zamoff. "The danger here is that the failure to pay adequate attention to electronic discovery issues early in a case may unknowingly expose a company to serious risk." With rapidly developing case law and a seemingly insatiable thirst for electronic information from opponents, it's time for lawyers on both sides of the attorney-client relationship to take a close look at what can be done to better prepare for electronic discovery. From the corporate perspective, there are a number of key objectives: minimizing interruption to business operations, avoiding claims of spoliation, reducing discovery costs, and finding a sensible way to manage the review of increasingly large volumes of discoverable documents. "We started thinking about electronic discovery in 1993," said Jim Michalowicz, Manager of Legal Services for DuPont. "Our first real experience with electronic discovery came in 1995, and that helped us realize that we needed a better infrastructure to identify, preserve, collect and review electronic data." With 10 years of electronic discovery planning behind them, the DuPont legal team has a significant head start over most companies, but still shares most of the same concerns. "Figuring out how to avoid spoliation claims is definitely one of the biggest issues," added Michalowicz. "A company can quickly find itself in a defensive position when it has to determine what to preserve in the face of an electronic document request." Helping the company move from reactive to proactive mode is critical. Prior to joining Covington & Burling, Skelley worked as a Technical Project Manager at MCI, and worked on a large patent infringement case there. With experience on both the law firm and corporate sides of the equation, Skelley empathizes with the problems clients face here. "It's difficult to map out a plan to minimize business disruptions when multiple lawyers working on multiple cases may be requesting exactly the same documents for different matters. Even relatively simple steps to implement a plan can help," Skelley added. "Just having an updated listing of all the IT systems in place at the company can provide a good head start." Zamoff believes the first time a company faces electronic discovery is the most difficult. "Lawyers have to learn to talk to the IT people, and may not be used to doing this. In-house lawyers must remember that the company's technical department is a critical source of information for executing discovery obligations. Putting outside counsel in touch with the right technical people early in the case is critical." Containing costs in light of the great volume of electronic documents is another area of focus on the corporate side. Michalowicz offers, "We have tracked the number of documents, both electronic and paper, that have been collected at DuPont to respond to litigation and investigative requests. The data has supported our need to develop processes for handling the large discovery requests as well as managing electronic records within the corporate records management program. Many electronic discovery providers offer services to assist with the 'here and now' discovery demands but are not in a position to offer a client methods to reduce risk and cost for future requests by focusing on improvements at the corporate electronic records level." On the law firm side, lawyers have the benefit of electronic discovery experience in varied settings. Working with clients on matters ranging from relatively minor contract disputes or small labor and employment claims all the way to class actions or "bet the company" litigation, most seasoned lawyers should now be well versed in the basics of electronic discovery. Companies expect outside counsel to leverage this experience and impart that knowledge to their clients along the way. "Outside counsel can really add value to a case by coming to the situation with an understanding of records management practices as well as an electronic discovery action plan," said Michalowicz. "They need to have the confidence to help corporate clients make electronic discovery decisions and then validate the defensibility of their approach." "This is a great opportunity for the law firm to market its services to clients," noted Skelley. While some law firms remain rooted in the paper world of discovery, the most sophisticated firms have moved quickly to adopt electronic discovery practices in the past several years-including learning how to use technology to aid in the document gathering and review process. "Lawyers must be technologically aware of what the different options are for clients," added Zamoff. "The window of opportunity for giving advice to clients in an electronic discovery matter is very narrow. Outside counsel must be armed with the expertise to make quick, confident determinations about what is or isn't appropriate in a given situation." The pervasiveness of electronic discovery means that all companies must have ready access to the evidence they may need to produce, with a plan in place for effective data gathering and review. Effective planning requires a new working relationship between in-house and outside counsel to make proper electronic data management the foundation for effective and complete discovery responses. |
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