Practice

What Is An E-Discovery Counsel?

E-Discovery counsel are attorneys who possess the technical and legal knowledge and experience to provide legal advice to legal teams during the E-discovery process.

The volume of electronically stored information involved in litigation today, combined with the complexity and variety of technology used to store and retrieve ESI, as well as the changes to the new FRCP and the resulting case law, have created a need for attorneys who limit their practice to e-discovery rather than merely deal with it occasionally. E-discovery counsel are sought by lawyers who need a "go-to" person to resolve these complex issues. They are also sought by Judges as "E-Discovery Special Masters" to act on behalf of the court to resolve e-discovery issues, and by knowledgeable parties and their counsel to resolve e-discovery disputes at or before the Rule 26(f) "meet & confer" through e-discovery mediation, also being referrred to as e-mediation.

Why Do You Need An E-Discovery Counsel?

Rule 1.1 of the ABA Model Rules of Professional Conduct states that a lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.

Rule 26 of the FRCP requires counsel to obtain a level of familiarity with the client’s data retention systems so as to effectively define, locate and preserve all information potentially relevant to the claims and defenses presented in each case. This requires knowledge of how the client’s system creates and stores information, how that information can be lost or deleted, how accessible the information is, and specifically where potentially relevant information is stored.

Many district courts, (like the U.S. District Court, Western District of Pennsylvania) have adopted new local rules explicitly referring to a "duty to investigate" the client's ESI in order to discuss how the ESI "can be preserved, accessed, retrieved, and produced".

ABA Model Rule 3.4 further clarifies counsel’s obligation to preserve and produce all potentially relevant and responsive ESI by stating that "a lawyer shall not unlawfully obstruct another party’s access to evidence or unlawfully alter, destroy or conceal a document or other material having potentially evidentiary value. A lawyer shall not counsel or assist another person to do any such act…" [Model Rule 3.4(a)]. In pretrial procedure, a lawyer shall not make a frivolous discovery request or fail to make a reasonably diligent effort to comply with a legally proper discovery request by an opposing party [Model Rule 3.4(d)].

When counsel falter, courts have a broad range of sanctions that they have not been hesitant to invoke for e-discovery shortcomings; from extending the discovery period or barring certain evidence or testimony at trial for minor infractions involving ordinary negligence, to granting adverse inferences and judgments against a party for infractions involving gross negligence or deliberate evidence spoliation. In at least one instance, criminal charges have been filed for the deliberate destruction of electronic evidence.

Three lawyers at the law firm of King & Spalding recently conducted an extensive study of federal court sanction motions and sanction awards for e-discovery violations. The study analyzed 401 cases prior to 2010 in which sanctions were sought. Sanctions were awarded in 230 of the cases including dismissals of the action, adverse inference instructions to the jury, and significant monetary penalties including nine awards of over $5 million. Counsel were sanctioned for failure to turn over materials on a timely basis, failure to inform clients of preservation obligations, failure to oversee their client’s search for relevant and responsive information in response to discovery requests, failure to comply with Court Orders related to e-discovery, lawyer misrepresentations, and failure to produce documents.

Subsequent studies on sanctions at Gibson Dunn and Williams Mullen, showed sanctions down slightly in 2010.

For all the reasons above, you may want to consider the assistance of an experienced, knowledgeable E-Discovery Counsel when dealing with ESI issues in federal court.

What Are The Primary Responsibilities of An E-Discovery Counsel?

Key responsibilities of E-Discovery counsel in chronological order (these responsibilities include, but are not limited to):

Advise on the proper timing and execution of electronic evidence preservation and collection of potentially relevant data when the duty to preserve arises.
Assist with the creation and issuance of the litigation hold, including training, response and tracking compliance.
Assist with the creation and issuance of a preservation letter to alert opposing counsel of their preservation obligations when litigation is "reasonably anticipated".
Provide E-Discovery mediation services for counsel who have not been able to settle their e-discovery issues before or during the Rule 26(f) "meet & confer", but would like to do so voluntarily before the appointment of an E-Discovery Special Master by the court.
Advocate on behalf of one party prior to, during and after the Rule 26(f) "meet & confer" conference
Assist in the preparation of discovery requests and responses, or the joint creation of ESI search protocols.
Assist with depositions or preparing client representatives for depositions that deal with E-discovery issues
Advise/counsel on issues related to the review and production.
Provide trial support, as required.
Assist the court as an "E-Discovery Special Master" to resolve e-discovery disputes between parties at the early stages of the discovery process.

What Are The Critical Skills Required of An E-Discovery Counsel?

A thorough knowledge of the FRCP and evolving case law related to ESI
A solid background and understanding of IT issues, systems, terminology and environment.
Experience as a litigator, familiar with the procedures in federal court.
Working knowledge and experience addressing E-discovery issues from a judicial perspective – providing judges what they expect relative to ESI.
Ability to deal effectively with opposing counsel; writing specific, targeted e-discovery requests or negotiating joint ESI search protocols; overcoming overly broad or unduly burdensome discovery requests; negotiating reasonable scope; agreeing on production formats; applying the principle of proportionality to manage costs.
Ability to evaluate, select, and execute appropriate search methodologies that are iterative in application, provide quality control metrics, and achieve balanced recall and precision targeted goals.
Avoid court sanctions through the competent and cost-effective application of the law and practical knowledge of ESI “best practices” to reduce risks, manage costs and help win the case.
E-Discovery mediation skills and experience
Ability to serve the court as an "E-Discovery Special Master"

What Value Does An Experience E-Discovery Counsel Provide?

As you know, in litigation, a competitive edge may mean the difference between success and failure. If you are going up against a firm that has access to an internal E-Discovery Counsel and you don’t, you may want to "level the e-discovery playing field" by adding an E-Discovery Counsel to your legal team, especially at the front end of the process.

According to the Cohen Consulting Group, as of October, 2010, 87 of the AMLAW 200 law firms had created E-Discovery practices. This number is up from 6 only two years ago. By 2013, every AMLAW 200 firm is expected to have their own in-house E-Discovery practice.

How can smaller firms compete?

As the notes accompanying the new FRCP explain, the key to successfully addressing e-discovery issues is prior preparation on the part of counsel and their clients, and adept negotiation of e-discovery issues with opposing counsel before, during, and after the Rule 26(f) "meet & confer".

With adequate preparation and competent representation, the vast majority of e-discovery issues can be addressed in the early stages of a matter saving time, money and potential embarrassment and/or court sanctions.

In some cases, E-Discovery Counsel can serve as an E-Discovery Mediator (e-Mediator), to facilitate e-discovery disputes among counsel who voluntarily elect to do so. There are at least 4 benefits from this approach:

The mediator is under the control of the parties and is not reporting to the judge as he or she would be if an E-Discovery Special Master is assigned.
Because all mediation discussions are confidential, the IT people at the session can speak openly because they are not "on the record".
The discussion and any written offers to compromise remain confidential.
If both sides can agree to mediate in good faith, this approach can be less costly and a quicker alternative to either litigation or the appointment of an E-Discovery Special Master.

For those instances where agreement on critical e-discovery issues can’t be reached early, the extent and depth of the disagreements identified during competently executed "meet & confer" deliberations, provides critical information necessary to assess risks, costs and develop case strategy.

Having an experienced E-Discovery Counsel involved "early on" will help prevent errors that could result in costly mistakes or court sanctions, making the investment not only a reasonable and prudent expense, but a great value.