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Discovery Counsel is no longer an option
Retaining qualified Discovery Counsel is absolutely essential and critically important to the cost-effective management of modern litigation.
“Discovery counsel” are attorneys specially competent to interpret and implement the rapidly evolving discovery-related case law who are conversant with the data storage formats and information management systems encountered in typical corporate settings and able to evaluate the technology available to facilitate discovery.
Discovery Counsel should be retained as soon as litigation is contemplated or can reasonably be expected. Company management and General Counsel should select Discovery Counsel before trial counsel.
Because of the confidential Company sensitive and mission-critical information that may have to be produced in discovery during litigation, Discovery Counsel must report to and be guided by company management at the highest levels. During litigation, Discovery Counsel effectively becomes a member of the company management team functioning much like the harbor pilot who guides a container ship or cruise liner out of the harbor into the open sea.
Discovery Counsel is essentially “in-house” whether as a member of a corporate legal department, or of counsel to the attorney directly reporting to and representing company management.
From document discovery to E-discovery
Historically, discovery was handled by the lawyer or lawyers retained on the basis of their subject matter expertise. Discovery was often treated as an ancillary function not requiring much high-level attention. Discovery was just another aspect of the litigation for trial counsel to handle.
Trial counsel often assigned discovery responsibilities to Associates as a form of OJT (on the job training) or “professional development” and the ethical requirement to competently supervise junior attorneys was frequently overlooked.
Discovery then and now
In the “good old days” before E-discovery, companies regularly faced the discovery requests demanding “all” the documents, books, and records relating to any aspect of the subject matter of the litigation.
Implicit in those kinds of discovery demands was the belief that the attorneys on both sides of the litigation would employ legions of paralegals and associates billing at exorbitant hourly rates to log, index, code, and annotate all these documents, then eventually abstract and summarize them. Then some equally overpriced group of senior associates and non-equity “partners” would review the documents and decide which ones they would present to the partners who would bill the client at even higher hourly rates for reading them again. The Thus the litigation departments of large time-billing law firms became profit centers and welcomed omnibus discovery requests as an opportunity for substantial growth and profit.
The obscene profits derived from leveraging the billings of associates and paralegals involved with document discovery during major litigation soon spawned litigation “boutiques” which sought to capture all of the profit from litigation without the need to share it with transactional partners in a large “full service” law firm.
Discovery was the reason why litigation in America became more expensive than in any other industrialized nation in the world.
ESI (electronically stored information) and E-discovery have changed this paradigm, adding a new and rapidly rising cost to major litigation and spawning a new growth industry — vendors of the technology necessary to conduct E-discovery and the “experts”required to manage ESI.
E-discovery is more than just document discovery
The diverse and sophisticated technologies we use to generate and transfer data and the massive volumes of electronically stored information (“ESI”) complicate the discovery process. E-discovery can often involve terabytes of data and the risk of sanctions for mishandling that datda is ever present.
Only an attorney authorized to practice law can lead the discovery effort during litigation. E-discovery cannot be entrusted to a third-party vendor. Even the most experienced and sophisticated third-party discovery services vendor legally requires active supervision and monitoring by an attorney. Unfortunately, many “litigators” are technologically ill-prepared to provide the supervision required.
Retain Discovery Counsel before they become essential
Qualified Discovery Counsel should be retained as soon as litigation is contemplated or expected, even before trial counsel is selected.
The greatest risk of sanctions arises from tactical errors in the early stages of the discovery process when key documents and data are being identified.
Early identification of data custodians and location of data repositories will significantly impact discovery costs throughout the litigation.
Involving Discovery Counsel at the start of litigation will bring important documents to the attention of trial counsel early enough to provide significant strategic benefits.
“Competent” Discovery Counsel
Competence is an ethical requirement in every legal representation and today, technological competence is an ethical requirement for managing E-discovery. Technological competence is now implicit in the certification and “reasonable inquiry” requirement of Rule 26(g) of the Federal Rules of Civil Procedure.
Discovery counsel must not just keep up with the evolving case law, but understand the emerging technologies in database management, data analytics, and technology assisted review (TAR) systems. The mathematical methods associated with predictive coding and TAR raise issues that most litigators are unprepared to address.
The consequences of failing to retain qualified Discovery Counsel can be disastrous. In litigation against a major competitor, Broadcom, the Qualcomm trial team failed to identify 300,000 relevant documents until after closing arguments. The Court imposed $8.5 million in discovery sanctions and referred the Qualcomm attorneys to the California State Bar for disciplinary action.
Responsibilities of Discovery Counsel
The main role of Discovery Counsel is to guide discovery from the initial hold letters through the in limine motions to the final verdict after a trial on the merits — on-budget and on-time.
This routinely involves engaging consultants and service providers; coordinating with client-side IT personnel and data custodians; identifying and securing potentially relevant documents, ESI, and occasionally even physical evidence; while implementing a process to screen them for privacy, responsiveness and privilege.
The primary obligation of Discovery Counsel is to help the Company meet their discovery obligations during litigation in a manner that is cost-effective, minimally disruptive, defensible if challenged and attains the strategic goals and long-term objectives of the Company.
During litigation, Discovery Counsel becomes a resource for the Company IT department, rather than a burden and distraction.
Discovery Counsel as counterintelligence agent
Modern discovery under the liberal interpretations of the Federal Rules of Civil Procedure favored by most Courts is often little more than a fishing expedition hoping to net admissible evidence for use on trial. E-discovery during litigation has now also become a sophisticated tool of industrial espionage and has been likened to a terrorist “car bomb” in its devastating and indiscriminate effects on a business.
As soon as Discovery Counsel is retained they assume a fiduciary obligation to protect the information assets of the Company throughout the entire duration of the litigation and become responsible for overseeing the safety and security of those information assets throughout the discovery process—from identification and preservation through review and production, and ending with destruction or return when the case is done.
Discovery Counsel is both responsible and accountable for assuring that the information assets of the Company are not compromised during the litigation.
With both authority and responsibility to protect the information assets of the Company, Discovery Counsel can negotiate and confirm the appropriate protective orders and generally supervise and control the entire discovery process for the Company allowing trial counsel to focus on the trial itself and company management to continue operating the business with as little interruption as possible.
There are many ways to manage discovery. Disparate and often conflicting technologies are available for gathering data, identifying responsive materials and filtering the mass of data to obtain meaningful information relevant and material to the litigation.
During the E-discovery process in major litigation third-party vendors and service providers must be selected to implement the technologies chosen the discovery process.
Discovery Counsel can make the difficult tactical choices among competing technologies determine and industry best practices necessary to further the strategic plan of the Company during the litigation.
Negotiating the best prices and terms with service providers requires experience and the ability to objectively compare proposals with different pricing structures and benefits. Choosing the most suitable service providers and evaluating toolsets to match the requirements of a case require familiarity with the marketplace and the types of outcomes that can be achieved as well as a deep understanding of litigation based on experience.
Discovery Counsel should be responsible for selecting those third-party vendors and service providers, defining the terms of their engagement, and supervising their performance.
E-discovery and the unlicensed practice of law
Discovery is a legal activity. Advice given to a client about discovery obligations is legal advice rather than business, advice, and representing a client during discovery is the practice of law. Consequently, discovery must be conducted by or under the direct supervision of a responsible attorney.
Decisions materially impacting discovery cannot be delegated to consultants or technicians who have no legal responsibility for essential activities like determining the sufficiency of a legal hold, establishing the parameters of responsiveness or withholding a document based on privilege. Non-lawyers may not select review teams, choose training protocols, select QC (quality control) metrics, or filter data using advanced analytics. Any non-attorney purporting to make these decisions is engaged in the unauthorized practice of law.
An attorney must be accountable and also liable for the entire discovery process throughout the course of litigation. Accountability cannot be delegated to or assumed by project managers, consultants, discovery vendors or advisory firms.
The non-delegable duty to supervise
While nonlawyers such as electronics technicians and computer scientists, forensic specialists, database administrators, project managers, linguists and information scientists, may provide assistance and support during discovery, Discovery Counsel still remains legally responsible and accountable the client and the Court for their conduct during the litigation, and for ensuring ensuring that they perform their assigned tasks competently, diligently, and otherwise in conformance with the ethical obligations of the attorneys conducting the litigation.
Discovery Counsel must supervise and maintain overall responsibility for the work of the experts they select, whether third-party vendors or contractors, and employees of the client if they are involved in the discovery process.
Discovery Counsel is also ethically obligated to remain continuously engaged in the work of the non-lawyers performing services during the discovery process to the extent of educating all of them about the legal issues in the case, the factual matters impacting discovery, including witnesses and key evidentiary issues, the obligations around discovery imposed by the law or by the court, and of any relevant risks associated with their discovery tasks.
Even experienced non-lawyer professionals must be competently supervised during discovery. They must not be permitted to become de facto supervisors themselves. Discovery Counsel must remain sufficiently involved in their activities to provide meaningful oversight and supervision.
What can you expect from Discovery Counsel?
Among the many activities Discovery Counsel will perform during the course of their engagement, the most common are
- drafting litigation hold notices
- scoping and documenting data preservation activities
- coordinating and overseeing data forensics
- arranging pretrial conferences and negotiations
- attending pretrial conferences and negotiations
- drafting document requests and objections
- developing search schema and validation metrics
- identifying and/or creating “seed” documents
- organizing and monitoring team training, supervision and quality control assessments
- selecting and implementing technology assisted review (TAR) and predictive coding systems
- supervising and actively participating in discovery motion practice
- quantifying discovery burdens and when required advocate for a “proportional” response under the new discovery rules
- selecting third-party vendors and consulting experts including drafting their contracts of engagement and retainer agreements
Discovery Counsel can also help their clients develop defensible and consistent routines for data management, data retention and data destruction.
What are the qualifications of a Discovery Counsel?
Qualified discovery counsel remain abreast of the rapidly evolving body of discovery-related case law, are conversant with the data storage formats and information management systems encountered in typical corporate settings, and thoroughly understand the tools and techniques available to facilitate discovery projects of all types.
Discovery counsel must be technically sophisticated enough to understand the state-of-the-art methods available for identifying, collecting, processing, filtering, reviewing and producing ESI. They must be familiar with the relative merits of the many discovery service providers now competing in the marketplace and the contract terms suitable for their employment.
Discovery Counsel must possess the project-management skills to establish budgets and timelines.
Discovery Counsel must be aware of the principle risks, cost drivers and economies involved in discovery and must know how to control for them. They also should be capable of evaluating the effectiveness of information retrieval efforts as they are going on.
Discovery Counsel must be legally and ethically qualified to lead the discovery process — attorneys senior enough to accept final responsibility for the results and experienced enough to supervise and validate the supply chain of custody that turns data into information and eventually evidence.
A losing comment for wise General Counsel
Given the nexus of technology and law, and the ever-present focus on managing costs, the discovery process is an element of litigation that calls for effective legal oversight and competent supervision by qualified Discovery Counsel.
Discovery Counsel are American barristers. They can bring efficiency to litigation in America and make the process cost-effective for their Clients. A single barrister, not an overstaffed litigation department, should be responsible for discovery thoughout the course of litigation. The interests of the Company, its management, and its barrister are identical; while the interests of large time-billing law firms which profits from the proliferation of time billed by Associates and paralegals during discovery inherently conflict with the interests of any client.