The modern era has produced multiple forms of mass litigation: class actions for torts, securities law and other claims; simultaneous, coordinated multi-state proceedings, brought by the same or affiliated counsel; and actions aimed at both litigation and non-litigation (legislative, regulatory and publicity) fronts. The response to this modern phenomenon has often been designation of "national coordinating counsel," whose role is to oversee, systematize, rationalize and simplify the process of defending against such complex actions.
This article looks at yet another emerging trend, toward development of "national e-discovery counsel," responsible for overseeing, on behalf of major institutions, the processes followed, legal arguments advanced, and evidentiary records developed, in defending major institutions against attacks using the weapons of e-discovery. The article closes with some suggestions for how such national e-discovery counsel might most appropriately operate to serve this new role.
The Problem
E-discovery is here to stay. Over the past 30 years or so, a computer revolution has occurred. Where once business operations largely were documented with paper records, the modern business environment involves ubiquitous computing (a personal computer on every desk-top, and widespread use of laptops and other portable computing and communication devices). Generalized business use of analytical devices (spread-sheets, graphics, databases and other tools) has also become the norm. The development of the Internet, and email, IM and text messaging systems (among other new communication methods) has created a business regime where vast amounts of information are created, exchanged, analyzed and stored largely (often exclusively) in electronic form.
For business leaders and planners, these technological and cultural events present new opportunities for improved business operations and efficiency. For business lawyers and risk managers, however, this vast mountain of electronic data presents new and often daunting challenges.
Requests for electronic records (especially email) have become a staple in modern litigation. Where perhaps in earlier days a policy of "don't ask, don't tell" was followed, today there are powerful forces working to make electronic discovery a critical battleground in most major litigation:
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Front page headlines have repeatedly shown how electronic records (particularly ill-conceived email exchanges) can become make-or-break evidence in a case.
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Similar stories of spoliation foul-ups, which produce dramatic effects in some cases, have drawn public attention, especially within the plaintiffs' bar.
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Experience in "unbalanced" litigation (where one side has relatively few records, and the other side has an enormous collection) has shown that requests for electronic records (very easy to propound) can serve as a great source of leverage to extract settlement.
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The extensive public attention to the amended Federal Rules of Civil Procedure has brought the issue of electronic discovery to the forefront. The new Federal Rules (and similar rules developing in many states), moreover, squarely call for parties in every federal case to discuss electronic discovery issues early in the proceedings.
The rise of e-discovery as a significant issue in most cases (and almost always in large, complex cases) places new stresses on businesses:
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Unfamiliarity with the data storage and communication technologies of a business may mean that the company and its lawyers cannot effectively represent itself, in negotiations with adversaries, and advocacy before the courts, regarding what is fair, reasonable and efficient in the way of electronic discovery. As a result, adversaries may demand, and courts may impose, e-discovery orders that could be avoided through better-informed suggestions of rational alternatives.
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Failure to develop an effective system to identify information that must be retained as part of the "litigation hold" in response to imminent or actual litigation may lead to charges of spoliation, and adverse consequences for businesses.
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Lack of coordination may mean that the business takes inconsistent positions regarding e-discovery issues in various cases, leading to unhelpful rulings.
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Inefficiencies in e-discovery processing may develop, as various outside counsel use diverse e-discovery techniques and vendors, or counsel provide conflicting instructions to in-house IT staff and document managers.
Most of these kinds of problems can be overcome in the individual case. But, if these problems persist, and multiply, across a range of cases, over time the e-discovery problems may become overwhelmingly burdensome, resulting in serious disadvantage.
The National E-Discovery Counsel Solution
The concept of the national e-discovery counsel is modeled on the experience of many businesses in developing national coordinating counsel to oversee a class of cases (cases arising out of marketing of a specific consumer product, for example). The role of national counsel is not generally to serve as trial counsel in every case, but rather to oversee and coordinate the company's efforts in many cases, and to support local trial counsel in the individual cases.
Thus, national e-discovery counsel may perform one or more of the following functions:
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Develop and coordinate document production procedures and policies to ensure effectiveness and consistency of application.
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Work with the company's management to train employees and improve e-discovery procedures.
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Develop legally defensible document/data retention, backup, archiving and destruction policies.
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Help prepare responses to pre-litigation preservation letters.
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Help develop appropriate key word lists and other search techniques to find materials in the individual case.
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Assist local counsel in conducting negotiations with adversaries, and in e-discovery conferences with the court.
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Prepare responses to e-discovery interrogatories, document requests and requests for inspection.
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Defend depositions of company personnel and consultants.
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Draft papers (and often argue) motions to compel and motions for protective orders.
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Handle interactions with referees and special masters.
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Manage relationships with outside vendors.
As with other forms of national counsel roles, national e-discovery counsel need not perform the same role in every case. Indeed, national e-discovery counsel may not be involved in every case. Whole classes of cases may be excluded, based on the amount at issue, subject matter and other factors. But national e-discovery counsel should, in principle, be available to assist on a broad range of cases, so that a company may gain the optimal efficiency and consistency benefits that can come from the use of national counsel.
Implementing A National E-Discovery Counsel Solution
In planning for the implementation of a national e-discovery counsel solution, a business and its outside counsel should recognize several key ingredients to success:
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National e-discovery counsel should be fully qualified and equipped to provide the services requested. Such counsel should have substantial experience with e-discovery and data management problems. Counsel also should have command of the technical and project management issues that accompany this work. Finally, counsel must have the staff to cover the full range of matters that the company may face.
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National counsel should be involved early in the process of planning for e-discovery in litigation. Ideally, national counsel should participate in developing the company's document retention and litigation hold procedures, and in any updating and revision of such procedures. Ultimately, national counsel will be called upon to explain and justify these procedures to adversaries and courts.
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National counsel, however, should not substitute for the company's own e-discovery team. Any plans for e-discovery must be adapted to the company's specific needs and business methods. The company's internal e-discovery team should, if possible, include legal, risk management, information technology, records and other business unit representatives whose aim should be to survey what the company already does, and to develop improvements in procedures that will comport with the company's e-discovery obligations, with a minimum of disruption to the company's normal business practices. National counsel can and should advise this internal team. But it should not substitute wholesale for the team, and certainly should not attempt to impose cookie-cutter procedures that cannot be implemented effectively at the particular company.
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National counsel should be especially concerned about developing the record regarding the company's e-discovery practices. What part of that record will be treated as privileged (not available as evidence in the event of a dispute)? Who will "tell the tale" of the company's efforts (as a declarant, Rule 30(b)(6) deponent or witness in the event of a hearing)? Will the company need expert testimony to support its claims of reasonable e-discovery behavior? These and similar questions of proof are very much within national counsel's purview.
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National counsel must develop an effective system for communicating with the company, and with local trial counsel. Extranets, email updates, periodic conference calls and other techniques must be devised, to keep interested parties apprised of new developments, within the company, in the course of litigation involving the company and more generally with regard to new case law and new rules in various jurisdictions. National counsel may also wish to develop basic packages of essential information, or to conduct e-discovery "boot camps," to educate new personnel within the company, and new local trial counsel, regarding the company's practices.
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National Counsel should develop emergency response systems, to deal with "hurry up" orders from courts, and to handle cases that are assigned at the last minute. National counsel also should be prepared to step aside, efficiently, in circumstances where conflicts appear, or where their services are otherwise not appropriate. In that event, counsel should have some form of backup system in mind, to help the company (on its own) or new counsel handle the problem.
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National counsel must have the company's interest in increased efficiency and lowered costs of litigation firmly in mind, at all times. Counsel should be very attentive to best practices, in terms of technology, project management and team organization that can save money. Counsel should be prepared to recommend efficient service vendors, and to review new vendor candidates, with an eye toward "bang for the buck."
The role of national e-discovery counsel will, of course, be shaped by the circumstances of the individual client. And that role may change, over time, as the company becomes increasingly capable of handling major aspects of e-discovery with its own internal resources. But the suggestions outlined in this article should, in the majority of cases, serve as useful guides in developing and implementing a national e-discovery counsel program.
Published January 1, 2007.
