E-Discovery
A Survival Guide For New Lawyers
David R. Cohen and Lynn Reilly
David Cohen is a partner in the
Pittsburgh office of Kirkpatrick & Lockhart Preston Gates Ellis and co-chair
of the firm's e-Discovery Analysis & Technology (e-DAT) Practice Group. Lynn
Reilly is a staff attorney in the firm's Seattle office and e-DAT Group. Contact
them at david.cohen@klgates.com
and lynn.reilly@klgates.com.
You have been assigned to a major new litigation matter. The senior partner
has just informed you that she is entrusting you with the client's document
collection and production, including e-discovery. What do you do now?
1. Panic. When you have a big problem, the first step is to admit it.
Managing the record preservation, collection, review, and production process can
be one of the most difficult, complicated, expensive, and thankless jobs in any
litigation matter. It is a perilous area where pitfalls are plentiful, mistakes
are frequent, and the possibility of sanctions is real. And when things go awry,
as they often do, who do you think will be blamed? In the recent and noteworthy
Qualcomm decision, even junior associates initially were found to be
subject to sanctions for "monumental" discovery violations—though they were
likely not the decision makers and likely would have had little ability to
contradict partners' instructions. Qualcomm Inc. v. Broadcom Corp., 2008
WL 66932 (S.D. Cal. Jan. 7, 2008).
2. Take a deep breath. You may have drawn the short straw, but now you
must turn this into an opportunity to prove yourself. If you handle this right,
you could be a hero. In order to make that happen, make this project your number
one priority and plan to spend most of your time on it. Do not compound the
problem by pushing this difficult assignment to the back of your desk or trying
to pass along the work to an unfortunate paralegal. You have to take
responsibility—and there is no time to lose.
3. Assess the project. Fact gathering will be an ongoing process, but
at the outset you need to understand the basics:
- What is the litigation all about? Understand the pleadings and the types of
documents that are potentially relevant.
- Is an effective legal hold already in place? If not, immediate action must
be taken. Parties have an obligation to preserve potentially relevant evidence
as soon as litigation is reasonably anticipated. Be sure to track and document,
in detail, your legal hold efforts and all other preservation steps you take.
- What can you learn about the court that may impact e-discovery? Are there
applicable e-discovery rules in the jurisdiction (as there are in federal courts
and some state courts)? Are there any local rules about e-discovery or does the
presiding judge have particular practices he or she likes to follow?
- Who is opposing counsel and have they yet served requests for production?
Are opposing parties likely to face discovery challenges comparable to those
your client faces? If so, this circumstance often leads to negotiation and
reasonable accommodations. Or is this a case with a discovery imbalance (e.g., a
class action or individual plaintiff) where one side will have most of the
leverage and little incentive to agree to limits?
4. Gather expertise . Understanding the law of e-discovery is not
enough; you will also need practical advice and assistance. Find out if your
firm has an e-discovery guru or practice group, e-discovery/litigation support
specialists, or paralegals who frequently are involved in the process. If your
firm does not have in-house e-discovery resources, you owe it to yourself and
your client to get partner approval to bring in outside expertise, in the form
of a knowledgeable consultant and/or special e-discovery counsel. Beware of
relying solely on the advice of the same e-discovery vendors whose profits
depend on your choices.
Your next critical steps are to understand e-discovery (including the
terminology), make a preliminary plan, educate the partners, and manage the
process (including containing costs.) For details on these steps, read part two
of E-Discovery in the July issue online at www.abanet.org/yld/publications.html.
READY RESOURCES
- E-DISCOVERY FROM THE WAR ROOM! Program presented by the Tort, Trial &
Insurance Section (cosponsored by YLD), Aug. 8, 2-5 p.m., at the Annual Meeting,
Hilton New York. www.abanet.org/yld/annual08/details.shtml.
