This is the third in a three-part series about the critical role of discovery counsel on a successful litigation team. In Part I, we discussed the qualifications of discovery counsel and the risks of proceeding without one. Part II explored ethical considerations informing the importance of the role. In this article we conclude by explaining how clients can reap the greatest benefit from their discovery counsel engagements.

Early Retention is Key

To maximize the benefit of these engagements, qualified discovery counsel should be retained as early as possible—before litigation is filed—to help develop a response strategy. At the latest, discovery counsel should be retained at the onset of a case. Proactive engagement allows the lawyer to deliver the most value. Some problems, such as the remediation of historical archives and backup tapes, can be solved relatively easily before a lawsuit is active, but they become intractable once the case is underway. Moreover, the biggest risk of sanctions arises from misdirection and tactical errors in the early part of the discovery process, when key documents and data are being identified and preserved. Initial scoping of custodians and data repositories at the beginning of a case also impacts costs throughout the proceedings, and is an area where experienced discovery counsel can provide tremendous value. Forthcoming changes to Rule 37(e) of the Federal Rules of Civil Procedure, for example, will limit the availability of harsh sanctions for non-preservation of data if certain requirements are met. Dedicated discovery counsel, qualified to choose the right data to preserve and to weed out what is safe to ignore, will be able to achieve even more benefits under the new rule. Additionally, discovery counsel engaged early can help establish budget expectations and install reliable systems for tracking and documenting the effort. Discovery counsel involved in the case from the onset can also help get the most important documents to matter counsel faster, which can help establish the narrative of a case. An early advantage in understanding the facts yields significant strategic benefits for the trial team.

Responsibility for Discovery Materials

Clients should make their discovery counsel expressly responsible for overseeing the integrity of the client’s data throughout the discovery process—from identification and preservation through review and production, and ending with deletion or return to the client when the case is done. This clearly defined portfolio enhances accountability and vests one lawyer with a fiduciary duty to protect the client’s vulnerable information assets across the entire lifecycle of the case. Discovery counsel who receive clear authority to protect the integrity of their clients’ evidentiary materials can reasonably insert themselves at any point in the process to ensure these are handled appropriately. They are empowered to partner with trial counsel to decide questions about the scope of collections and parameters of responsiveness, and they can justly intervene to avoid overreach, to prevent data assets from being compromised and to ensure these are securely stored and reliably tracked at all times. This arrangement is particularly advantageous from a privacy and data-security standpoint. It centralizes accountability and facilitates data handling in a manner appropriate to the materials’ sensitivity and consistent with the client’s tolerance for risk. Clear authority to protect the information assets also places discovery counsel on solid ground to negotiate and confirm appropriate protective orders and Federal Rule of Evidence 502(d) orders are in place, and to make sure all of a client’s data are destroyed or returned when the case concludes. The attorney vested with this authority can also rightfully review or edit discovery responses and objections—particularly as they relate to the handling of electronic data or overlap with the discovery attorney’s efforts in prior cases. This oversight allows the case team to focus on the facts that matter and not get bogged down in the process of extracting and protecting them.

Discovery Planning, Strategy and Budgets

Discovery counsel and the ligation or trial team should share responsibility for determining which electronic documents will be collected, reviewed and produced. Generally speaking, and especially if engaged on a continuing basis, discovery counsel will have a different perspective than matter counsel focused on winning a single case. The interplay between the two roles is valuable. These lawyers should consult early on to establish advantageous, defensible and cost-effective discovery protocols, which could then be presented to the client for approval. There are myriad ways to manage discovery. There are different tools and technologies to employ, varying approaches to gathering data, numerous methodologies to target responsive materials and to filter out the less important. These tactical decisions directly impact the bottom line of a case, as well as the client’s ability to successfully prosecute or defend its claims. Discovery counsel who is familiar with current best practices should be invited to provide insights and guidance before these (often costly) efforts get underway. Attorneys who practice in the discovery arena are also accustomed to establishing and operating within budgets. The discovery process consumes a large portion of the overall legal spend, but it is often more repeatable and predictable than other aspects of litigation. As such, discovery counsel can often help a litigation team determine appropriate cost estimates, and help them avoid unexpected cost overruns, unpleasant surprises and expensive mistakes.

Vendor Selection and Engagements

Discovery counsel should be called upon to assist with vendor selection and engagements. There are countless service providers available in the marketplace. Selecting and managing these resources, including the technology they deploy, can have a significant impact on the outcome and costs of both the discovery process and the case. Negotiating the best prices and terms with service providers requires experience and the ability to objectively compare proposals that often have dramatically different pricing structures and benefits. Choosing the most suitable providers and evaluating toolsets to match the requirements of a case require familiarity with the marketplace and the types of outcomes that can be achieved. These might not be priorities for a group of trial attorneys primarily focused on wining a particular case, but they are qualifications that discovery counsel can be expected to possess.

Reprinted with permission from the November 19, 2015 edition of Corporate Counsel © 2015 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited. For information, contact 877-257-3382 - reprints@alm.com or visit www.almreprints.com.

Read more: How to Get the Most from a Discovery Counsel