In a prior article, “eDiscovery Trends that will Likely Impact Corporate Counsel in 2017” I discussed the increased role that Corporate Counsel needs to have in all facets of litigation regarding their enterprise to make sure that outside counsel are providing true inclusive full service advice. Today I am going to focus on some eDiscovery tips for outside counsel to make sure that they are providing the services that Corporate Counsel expect and need. eDiscovery is getting more complicated, not less. Keeping up-to-date on rules changes, case law and interpretation is now a requirement for attorneys practicing law related to eDiscovery, and in many ways it has become a sub-specialty of the practice of law.
Read and Understand the Rules
While this seems to be an obvious requirement, it is amazing how many practitioners are not familiar with the nuances of either the Federal or State rules that may apply to the case they are litigating. It is imperative that Outside Counsel have the requisite expertise in order to supply defensible services to their corporate clients. The Federal Rules of Civil Procedure (FRCP) provide the framework for an attorney’s obligation in handling eDiscovery and it should be noted that they are quite different than “traditional” discovery rules.
Focus on the information that is provided in the footnotes and working notes of the rules, these often provide details on what the group is truly trying to achieve with the language that the crafted. In addition, many states have separate eDiscovery rules which vary from the FRCP. As they say, the devil is in the details, and with the relatively new FRCP that went into effect at the end of 2016, the details are still being fleshed out and implemented in different ways. The procedural requirements in eDiscovery are fundamental to providing service to your corporate counsel clients.
Read the Current Rulings
The single best way to truly understand the rules is not to just read them in the abstract, but rather to see how they are being interpreted in active cases with details that provide context and meaning. There are many Federal judges that specialize in eDiscovery expertise that have taken pains to write very explicit and detailed opinions on how the rules should be applied in a specific case. Staying up to date on recent decisions is imperative to truly understanding the practical implementation of the rules and the pitfalls that will be encountered if rules are not followed. Again, State specific cases also contain information that is important to incorporate in your practice.
Become Familiar with the Lexicon
Like every specific type of law, eDiscovery has its own language. It is not impenetrable, but there are terms of art that have specific meaning and are often technical in nature. If you don’t understand the language, it is difficult to become fluent and provide the level of service that your corporate counsel requires. I have often heard lawyers say they went to law school because they weren’t good at science or math, but that word smithing made sense to them. eDiscovery is just a different flavor of word smithing.
While eDiscovery is often somewhat technical, it just takes a little time to master the words and terms specific to eDiscovery and data. You want to be sure that you understand what you are arguing for or against because judges do not want to waste their time overseeing eDiscovery disputes that are the result of a lack of understanding. There are a number of eDiscovery glossaries available online to provide the definitions that you need to negotiate not only with the opposition, but your own in house team as well.(Two free ones are: http://www.edrm.net/collections/edrmglossary/ and https://thesedonaconference.org/download-pub/3757.
While it sounds like a very quant term, all it means is that you need to know where your data is located, early on in the process. Without this knowledge, you will be stymied when it comes time to identify, collect and preserve it. This requires extensive communication with your clients IT staff, and if it is an ongoing client, the time to perform this operation is long before you need access to it. Insisting that your client has a Records Management Policy and enforces it will save them time and money moving forward.
So insist that meetings with the IT staff occur early and often and that they understand the need to update this material constantly. Network locations, custodians, OS and application data as well as volumes of data are important pieces of information to have on day 1 so that litigation holds can be placed immediately to assure that relevant data is preserved, while at the same time not over preserving data. Being prepared ahead of time with this information may well make you the ‘reasonable’ party when you are arguing with the opposition and ultimately the court bout the difficulty of producing everything the opposition requested. Gaining the cooperation and understanding of the IT department is the key to a successful data gathering strategy. Their input and ideas are essential to responding correctly and completely too all eDiscovery requests.
Meet with Inside Counsel
Perhaps most importantly, you need to meet with Inside Counsel to discuss all these issues. They need to recognize the importance of all these issues and how they affect their organization, both negatively and positively. They need to understand how to use the FRCP and State rules to their advantage, which can’t be achieved if they don’t understand their responsibilities on an ongoing basis. After all, being prepared is what 95 % of practicing law is all about.