E-Discovery calls for “Discovery Counsel”
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- Technological competence: Ethical obligation
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E-discovery has changed the American way of litigation forever. Just as discovery under the federal rules visions of the 1960s was supposed to end trial by ambush, but instead just increased the cost of litigation and the amount of resources it consumes; e-discovery has now brought information overload to litigation and created a new practice niche for the “discovery counsel.”
If a lawsuit involves the communications of one or both parties, there will be a need for E-discovery. Whether it is emails, spreadsheets, PowerPoint presentations, or word processing output, rest assured that ESI – electronically stored information — will play a critical role in determining your success or failure as the attorney for one of the parties.
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. Discovery Counsel should be selected before trial counsel.
Because of the confidential, sensitive, and mission-critical information that may have to be produced in discovery 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 from the open sea safely into the harbor.
From document discovery to E-discovery
Historically, discovery was often treated as an ancillary function not requiring much high-level attention; just another aspect of the litigation for trial counsel to handle.
In practice, 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.
In the “good old days” before E-discovery, companies regularly faced 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. 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 draconian economic sanctions for mishandling that data 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.