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Practice Tips Five Tips for In-House Counsel to Prepare for E-Discovery by Christopher Garcia, Clifford Chance LLP If you haven't already faced an electronic discovery request, you likely will soon. In-house counsel can have a significant positive impact on the success of an electronic discovery project by following these practice tips. 1. Allocate sufficient resources. Make electronic discovery planning one of your legal department's key initiatives. Your company's executive team will look to you for guidance in minimizing the company's risk in the face of electronic discovery requests. Outside counsel will need you to facilitate communications with the IT staff to understand how the company creates and stores electronic data. You won't be able to meet these needs without advance preparation. 2. Communicate with employees and IT staff. Communicate early and often with your employees. Have a plan to notify employees of document preservation obligations when litigation is pending or imminent. Be sure your IT group understands that a delay in enacting the company's preservation plan can result in deleted data (and possible claims of spoliation if your company utilizes an auto-delete mail function and it continues to operate). Sanctions as severe as $1 million have been issued for even negligent spoliation of electronic data. 3. Plan ahead to minimize disruption. Collecting electronic data and imaging employees' computers often proves to be more disruptive than gathering their hardcopy business files. Work with outside counsel to map out a sensible data-gathering plan to minimize business disruptions. The data-gathering team should include company IT staff as well as outside counsel. If possible, establish an on-site diskimaging lab so that employees are reunited with their workstations within a few hours. Plan for unexpected delays and provide employees with temporary mobile workstations that provide network access. Follow the established plan to document chain of custody issues and prevent unintentional alteration of the data. 4. Understand your obligations. Help the company understand that outside counsel is not trying to make things difficult. As electronic discovery case law develops and discovery rules are interpreted in this context, the obligations of outside counsel have changed significantly. For example, it is no longer sufficient for an attorney to work only with members of the company's management team to identify discoverable electronic data. Courts now routinely require outside counsel to work directly with the company's technical department to ensure discovery obligations are met. 5. Utilize technology when working with outside counsel. Be open to creative approaches for managing electronic discovery. Many law firms will work with you to establish an extranet site at the beginning of the case to facilitate communications, post notices, map out a discovery plan, share task lists, etc. Once electronic document review begins, online review tools can provide shared access to a secure, Web-hosted database for electronic discovery documents. As outside counsel reviews the documents, you can track progress and report significant developments to your executive team. 
Christopher Garcia is an associate in the Securities Group in the San Francisco office of Clifford Chance US LLP. |
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