In-House Counsel’s Role in Bringing Order to Discovery 

By: Robert Alarcon and Stephanie Adams 

As lawyers, we think of discovery through the lens of our profession. Of course, to your outside counsel, it’s the key process of gathering facts so that they can make winning arguments in litigation. But to a company’s IT team, it’s a technical process that seems complicated and confusing, has surprisingly aggressive deadlines, and ultimately takes them away from their day job. For the rank-and-file employees who will become your custodians and system business owners, it can feel overwhelming, scary, and even like an invasion of privacy. In the middle of all these different perspectives, needs, and roles sits the company’s in-house counsel. Tasked with interfacing between these disparate groups while meeting court deadlines and protecting the organization from spoliation sanctions, counsel acts like the captain of a team of all-stars from two or three very different sports. It can feel overwhelming at times. To help, we’ve found several best practices that help bring order to the chaos and complete discovery successfully and defensibly. 

eDiscovery and Document Retention Best Practices 

The preservation letter, or other preservation trigger, from Plaintiff’s counsel usually comes long before litigation ever begins. It could be months or years later when discovery itself finally begins in earnest. This is NOT the time to discover that your company failed to preserve information relevant to your claims or defenses in the matter. Typically, counsel asks custodians throughout the organization to preserve emails, documents, text messages, videos, photos, and a growing number of other data types. In today’s modern, data-filled environment, requests can go much further, including vehicle inspections, product specifications, information on prior litigation, and claims file materials. To keep up with the massive amount of potentially discoverable data, counsel must proactively monitor litigation holds, retention schedules, and document storage to ensure compliance and confirm that discoverable data is accessible when needed. A litigation-ready retention schedule considers regulatory obligations, business needs, and litigation needs to determine how long to store organizational documents and when and how to dispose of them.  

Retention schedules directly impact your organization’s ability to respond to holds or discovery requests. In addition to regulatory requirements, the applicable statute of limitations can affect how long you store data. For example, personal injury cases often have a two-year statute of limitations. A retention schedule that deletes documents sooner may face scrutiny and risk an adverse spoliation ruling. Conversely, retaining documents for six years may be unnecessary, absent a preservation trigger. If no lawsuit is filed within the statutory period, consider how the information will be destroyed. A foolproof retention schedule will ensure relevant information is preserved for the required period and systematically destroyed when litigation risk has expired. 

Proportionality and Specificity in Data Requests  

When managing the cost and burden of discovery requests for your corporate clients, it’s important to address issues at the outset. Often, outside counsel focuses on briefing deadlines and early strategy work, leading them to take a “collect everything, and we’ll figure it out later” approach. This may work for a busy litigator, but it puts a burden on your organization that could be both costly and avoidable.  

eDiscovery is not meant to be a “boil the ocean” exercise. As Federal Rule of Civil Procedure 26(b)(1) explicitly states, the scope of discovery is limited to information “proportional to the needs of the case…” and considering “whether the burden or expense of the proposed discovery outweighs its likely benefit.”  Frankly, outside counsel rarely weighs the proportionality requirement, pushing it aside in favor of moving fast and worrying more about missing something than about what is actually needed. The result is a frantic client that must pull attention from its day-to-day operations to meet a burdensome discovery request that its own representative has not fully vetted.  

Let’s get something clear: it is not a company’s business to conduct discovery, even if it’s their responsibility. In fact, it is a huge hassle. IT staff, senior executives, and line-level employees take time from their real jobs for work that will not be reflected in their end-of-year assessments. 

In-house counsel can reduce that burden by working closely with clients to understand their systems and processes and do the hard work up front of making well-tailored document and preservation requests. Here are some of the ways that can be done.  

1. Hold early custodian interviews to understand the nature of the data to be requested. 

In discovery, you almost always don’t know what you don’t know. You may have a sense of important custodians and the data they may possess, but that is often the tip of the iceberg, not the whole story. Conducting early custodian interviews lets you test your theories of the case and build a detailed landscape of the key players and the data they may possess. Doing it early adds value, by minimizing your risk for unpleasant surprises at critical times. Never underestimate the value of learning early that you don’t have to collect from a particular custodian.  

2. Work in a phased approach. 

Get the high-value, easy to acquire data first. Once you preserve the data, start collections with the data sources and custodians you are most likely to need. In your ESI protocol, it can be helpful to negotiate a phased approach that produces the low hanging fruit first, while leaving complicated data privacy (e.g., GDPR or HIPAA) or technical access questions for later. This allows counsel to begin understanding the facts supporting the case earlier while also providing an opportunity to uncover that some of the more difficult to acquire data is duplicative, or less material to the case as initially perceived. The chance to save time, energy, and money down the line is argument enough to prioritize the important, easy to acquire data first.  

3. Work closely with IT to understand how systems and repositories are actually used. 

When eDiscovery comes for you, you will never regret having built strong relationships with our colleagues in IT. They will always be in the best position to understand which systems are used, who uses them, and how to access the data they contain. IT will know the ins and outs of the system’s technical side. They will understand the format of the data contained, as well as the possible solutions for accessing or exporting the data for litigation purposes. Working with forensic experts, they can determine whether an API is available, whether data can be easily accessed through some form of export, or whether more creative solutions are needed to ensure data is accessed in a forensically sound manner.  

Company IT may occasionally be called to explain the process they used to retrieve the data and to confirm that the proper search parameters were used to obtain all information responsive to a discovery request. They may also have to explain to a jury in plain language how they found the information and confirm the accuracy of the documents produced. Laying the baseline of transparency strengthens the Defendant’s position that the information provided is all there is, so that opposing counsel does not feel that you’re hiding the ball or stonewalling the Plaintiff, who has the right to have access to information to support and negate their claims. 

Partnering with the Right Vendor is a Two-Way Street 

A partnership with your eDiscovery vendor requires two-way communication. Your vendor is an expert at locating, retrieving, parsing, storing, and reviewing company data that you and your outside counsel then access. Treating them as a trusted partner can help protect your budget with technological efficiencies and by providing templates, training, and support throughout the discovery process. The right vendor is essential, but you need to treat them as part of your team to get the most out of them.  

An eDiscovery vendor without context is an order taker, not a partner. They must understand your organization’s needs and communicate effectively across different levels of technological acumen and professional areas. The best practice is to bring your vendor in at the outset of a developing matter that will require eDiscovery. Educate them about your organization’s business, data storage, retention practices, and idiosyncrasies. You’ll also want to discuss potential vulnerabilities—like a hard to monitor BYOD policy or a departed employee protocol that’s not fully reliable. Your vendor has seen it all and is ready to work with you to choose the best methods to proactively protect your organization.  

Your vendor can also communicate with lawyers on your team across different generations, experiences, and technological skills. They can bridge the gaps and help your legal team determine which documents are relevant and required to be turned over, whether there are any valid objections to prevent disclosure, and if any of the documents require redaction. The vendor can help you ensure seamless document production to streamline discovery in big and small cases. The same vendors can even assist you in using the information at trial.  

Conclusion 

Coordinator. Communicator. Friend. Therapist. Quarterback. 

In-house counsel holds a variety of roles in maintaining the policies and relationships necessary to prepare their organization and manage the discovery process once it has started.