By Eric E. Bensen & Rebecca K. Myers
"Discovery" is not a singular part of the litigation process - it encompasses a number of distinct elements, including document collection, document review, document production, discovery tracking and indexing, privilege review and depositions. Second only to trial, it is typically the most chaotic and expensive part of the litigation, particularly in a complex litigation, because these elements, which each require specialized planning and strategy, unfold simultaneously, or at least with significant overlap.
When overlaid against the specific requirements of Federal Rule of Civil Procedure 26, attorney's ethical responsibilities under model rules 1.6, 1.13 and 1.8, and privilege and work product considerations, the challenges posed by discovery can appear almost insurmountable.
However, by approaching the individual elements in a manner that considers each of their respective characteristics and making planning and strategic decisions concerning discovery flexibly from the outset of the litigation, the discovery process can be made manageable allowing important and necessary information to more readily find its way to the lawyers making day-to-day strategic decisions. When the discovery process is approached in such a thoughtful and organized manner, the foundation of the entire case is put firmly into place as all of the various elements of discovery become seamless permitting Outside Counsel to focus on legal strategy.
Moreover, in that setting, a clear understanding of the ethical issues that can arise in discovery becomes a means to avoid problems and give the attorney team comfort that it can focus on winning the case.
To hear more about the best practices to avoid ethical issues in the discovery process from Eric Bensen & Rebecca Myers, register for a complimentary webinar on May 12th by Clicking Here!