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Crisis is Not Carte Blanche for E-Discovery Spending
Many corporate law departments faced with adversity in terms of significant litigation or government investigations are often told it is a "bet the company" event and thus no effort should be spared in the defense of the organization. In the world of electronic discovery, this has translated into legal and service provider bills in the millions of dollars.
Yet there is a significant difference between spending substantial resources on necessary and meaningful tasks in a strategic fashion and simply handing blank checks to law firms, consultants and other service providers to do what they want in defense of your kingdom.
Here are five suggestions for organizations in crisis to best manage their resources and avoid waste in e-discovery:
1. Identify national discovery counsel to advise and coordinate all efforts, from preservation through production.
Too often we have seen companies waking up after a significant event to see reams of bills for services that were never needed or, in some cases, never even requested. We have seen instances of multiple counsel, all acting in good faith, duplicating efforts that do not advance the ball, but double the bill. We have also seen examples of counsel who do not understand the intricacies of modern enterprise data environments making promises as to preservation and production that are costly at best and unattainable at worst, creating substantial problems in the matters that impair the organization's credibility as well as consume its resources. National discovery counsel can play a critical role in avoiding these areas of risk and waste through coordination, strategic direction and executional oversight.
2. Explore alternative approaches to negotiating protocols for preservation, search and retrieval, production, privilege and protective order.
Too often organizations will "hunker down" behind traditional strategies and approaches to discovery, often incurring substantial costs that only much later will be revealed as totally unnecessary to the defense of the matter. Yet times of crisis are also times of opportunity to think "outside of the traditional box" of litigation at your company. Investigate how you can reach omnibus agreements on the scope of preservation and production rather than blindly trying to save everything "just in case." Look at how you may be able to provide access to select systems to avoid costly reviews and productions. Explore how you can agree upon technology-assisted review to eliminate discovery disputes, while simultaneously eliminating layers of costly human review of documents.
3. Don't be afraid to deploy new technologies and processes to review and produce information across all related matters.
While the world of technology-assisted review in litigations and investigations is still in its relative infancy, the potential for significant cost savings is substantial. Capturing these savings requires the deployment of proper processes around defensible technology as well as the ability to gain the confidence of regulators, adversaries and courts regarding the approach. You also want to find ways to have as uniform a process as possible across the various related matters. This requires a coordinated and strategic approach from the very beginning.
4. Demand centralized vendor management and billing to monitor spending on a real-time basis.
It is far easier to avoid a needless expense than to negotiate discounts after the fact. Thus, you should be proactive with your vendors regarding roles and rewards for cost savings. You should also escalate to a real-time billing review process, involving national discovery counsel from the outset, to identify potential areas of mission drift and waste before they escalate. This proactive approach to vendor relationships can save millions of dollars in significant litigation and investigation events.
5. Don't delegate legal issues to nonlegal service providers.
As recent ethics opinions from the District of Columbia make clear, there are significant nondelegable roles for lawyers to play in handling discovery and investigations for corporations. Of course, there are substantial obvious advantages to involving legal counsel in the discovery process, including the direct applicability of the attorney-client privilege and the ability to sign pleadings and make representations as officers of the court. Moreover, while nonlegal service providers are critically important to the efficient provision of discovery services, many of their employees are not lawyers and do not fully understand the litigation process, and other employees who do have law degrees do not have the experience and ability to stand up in court when needed. Having national discovery counsel at the helm and up to speed reduces any need for multiple counsel to learn secondhand from vendors what was done (which can further lead to wasteful second-guessing). National discovery counsel also provides an independent view as to the legal defensibility of processes and technologies offered by any given vendor at the outset rather than when questions arise later. A best practices approach is the creation of a team that blends the best expertise, technology and process from all of the service providers and law firms involved in defending your company in "big ticket" litigation.
Jonathan Redgrave is a founding partner of Redgrave LLP and has spent the past two decades providing advice and counsel to Fortune 500 companies in the context of e-discovery, global records and information management, and data privacy. Redgrave is a chair emeritus of The Sedona Conference Working Group on Electronic Document Retention and Production.
This article originally appeared in The Recorder.