This is the third column in a series addressing the challenges of early case assessment in the era of e-discovery. View the first column here and the second column here.

In this series, I consider how the high stakes of e-discovery have transformed early case assessment into a data management exercise and suggest how in-house counsel can work with trial counsel to ensure that e-discovery issues do not divert attention from strategic case evaluation. In this column, I discuss some of the risks that result when the “custodian” interview becomes the primary initial contact between outside counsel and your company’s potential deponents and trial witnesses.

The explosion of electronic communications has created an entire generation of attorneys who are focused upon electronic data analysis as the primary means of assessing their own clients’ claims and defenses. In a time when attorneys use email to communicate with their colleagues sitting in offices only a few feet away and use text messages instead of the telephone to “chat” with friends and family, the ascendancy of electronic communications in case assessment is hardly surprising. However, technology cannot supplant the critical importance of the personal relationship between trial counsel and your company’s testifying witnesses. Cases are still won or lost based on trial counsel’s ability to win the trust and confidence of the client’s testifying witnesses and to build a collaborative relationship. As in-house counsel, you must ensure that e-discovery-focused initial case assessment does not impede this personal relationship.

The danger of the e-discovery custodian interview is inherent in its very name—when outside counsel’s initial contacts with a potential trial witness are reduced to a mere inventory of the documents in the witness’s custody, then the “custodian” has been relegated to the position of a file clerk, whose value lies chiefly in her ability to preserve and identify written communications. This mindset impedes the development of the constructive collaboration between witness and trial counsel that is the essential foundation for the witness’s testimony at deposition and trial.

It is worth spending at least a moment to recall why the first communications between trial counsel and your company’s deposition and trial witnesses are so critical to your company’s successful litigation strategy. The witness’s initial contacts with outside counsel will substantially impact her future willingness to cooperate with outside counsel, to share insights about the parties’ dispute and to follow the direction of trial counsel at critical moments in deposition or at trial. To achieve these goals, trial counsel must persuade the witness that the trial team members are knowledgeable, skilled and loyal advocates for the company. The witness should leave her first meeting with outside counsel with at least a general understanding of how her personal knowledge as a witness relates to the company’s strategy for successful resolution of the suit and how she can contribute to that objective. In short, outside counsel must win the witness’s buy-in during their initial meeting to ensure effective future collaboration.

The custodian interview can derail this process at the outset of the litigation. A witness with significant participation in the events giving rise to the litigation will begin the initial meeting with three pressing questions:

  1. Will my knowledge of the matters in dispute enhance the company’s likelihood of success at trial?
  2. Will my role as a witness in this case adversely impact my career?
  3. Can I trust outside counsel to devise a strategy that ensures both the company and I emerge unscathed at the end of this litigation?

Of course, the witness may never directly raise any of these questions, but the longer they go unanswered, the greater the risk that the witness will lose confidence in trial counsel and become the sort of mistrustful, rogue witness who unwittingly undermines the company’s case. Establishing trust requires that the initial interview and every material communication thereafter with outside counsel is led by an experienced trial lawyer who has a strong grasp of the case and who will be a continuing point of contact for the witness through depositions and trial preparation.

The attorneys who handle e-discovery custodian interviews are often the exact opposite of what is needed to build this relationship—specialists with a narrow technical proficiency who have no role in broader case assessment or strategy development, who make requests of the custodian that often seem unduly burdensome and unrelated to the “real” issues in the case and who will disappear from the team as the case proceeds to depositions and trial. When these project management specialists are the first point of contact between a potential testifying witnesses and your company’s outside counsel, the result can be at best a missed opportunity and at worst an antagonistic witness relationship.

Once in-house counsel identify these potential pitfalls, it is not difficult to steer a safe course for the company and its trial counsel. First, they must accept that, in any moderately complex litigation, outside counsel’s effective communication with potential trial witnesses is an absolutely critical part of a winning case strategy. In-house counsel should budget accordingly for the initial case assessment. There may be times to suggest that the law firm push down work to associates with lower billing rates, but witness interviews are one of the quintessential trial lawyer tasks where experience and judgment pay huge dividends. Instead of entrusting this work to less experienced attorneys, in-house attorneys should insist that either the first or second chair lawyer for the trial team personally participate in any interview of a witness who is likely to be deposed or called to testify at trial, including any so-called custodian interview.

Next, in-house counsel should develop at least an initial consensus with the trial team as to the key case issues before beginning witness interviews. The witness needs a brief, coherent answer to the question, “so what is this case all about?” that provides a first cut at key trial themes and a framework to understand her own potential contribution to the company’s case.

Third, in the initial witness interview, in house counsel should ensure that retained counsel address first the topics that are most likely to be the witness’s primary concerns—identifying the key issues in the case and understanding how her knowledge relates to these issues and can contribute to the company’s litigation strategy—before addressing the nuts and bolts document custodian issues. This is just the basics of good communication: the witness first needs to understand the “how” and the “why” to be an empowered, cooperative and motivated participant in the process.

 This approach may in the short term be more time-consuming and expensive for your company, but in-house counsel must resist the temptation to exclude senior trial counsel from initial witness contacts by minimizing their importance as mere custodian interviews. Your company retains experienced trial counsel in part because of their skill in working with your company’s witnesses to prepare for deposition and trial. Your initial investment in building that relationship will pay dividends throughout the litigation.