Article
Source: Corporate Counsel
Article
By David Stanton,
11.16.15
This is the first in a three-part series of articles about the important role of discovery counsel on a successful litigation team. Part I provides an overview of the discovery counsel role, the qualifications of discovery counsel and the risks of entrusting the process to someone who isn’t properly qualified. Part II will evaluate the ethical standards emerging in discovery practice. Part III will conclude with several considerations to help clients maximize the value they obtain from their discovery counsel engagements.
Introduction
Saving money by adding a lawyer to your litigation team may seem counter-intuitive, but dedicated discovery counsel can help reduce costs and improve results. Whether you are a frequent litigant or facing a one-time dispute, dealing with multiple data custodians or just a few, there are several cost drivers and legal issues especially related to discovery that your trial attorneys may not be the most qualified to address.
The increasingly diverse and sophisticated technologies we use to generate and transfer data and the massive volumes of electronically stored information (“ESI”) we possess are creating multiple complications in civil discovery, resulting in a plethora of new case law. A well-qualified discovery attorney understands these emerging technologies and the evolving jurisprudence in this increasingly specialized field.
Discovery counsel knows how to supervise the participants involved in discovery, how to apply advanced analytics (which can save tremendous amounts of money) and how to satisfy the increasingly precise quality-control standards by which discovery projects are judged. An experienced discovery attorney knows best practices and common pitfalls, and steers clear of unnecessary disputes. When deployed across multiple matters, discovery counsel can build institutional knowledge, repurpose valuable work product, enhance data security, insulate an organization’s litigation profile and became a resource for, rather than a drain on, the client’s IT department.
Simply put, discovery projects— especially the larger ones—should be overseen by dedicated discovery counsel, and not every litigator has this expertise. Many companies are bringing the role of discovery counsel in-house; others are engaging discovery counsel through outside law firms. One size certainly does not fit all, but pairing independent discovery counsel with strong trial teams has several distinct advantages that should not be overlooked.
Qualifications of Discovery Counsel
“Discovery counsel” refers to an attorney whose legal practice focuses primarily on civil discovery and who routinely provides legal advice and supervision in this dynamic and technical field.
Qualified discovery counsel remain abreast of the rapidly evolving body of discovery-related case law, conversant with the data storage formats and information management systems encountered in typical corporate settings, and up to date on the latest tools and techniques available to facilitate discovery projects of all types. They are exposed to emerging trends and best practices as part of a community of practitioners and from serving different clients in a variety of settings. They understand how to quantify discovery burdens and to advocate for a proportional response.
Discovery counsel must be technically sophisticated enough to understand the practicalities of identifying, collecting, processing, filtering, reviewing and producing ESI. They must possess the project-management skills to establish and achieve budgets, deadlines and defensibility requirements. They must be cognizant of the main risks, cost drivers and economies involved in discovery undertakings, and must know how to control for them. They should be familiar with the fluid marketplace of discovery service providers and the contractual standards applicable to their services. They also should be capable of using statistical sampling and the metrics of precision and recall to evaluate the effectiveness of an information retrieval effort.
Finally, and perhaps most importantly, discovery counsel must be legally and ethically qualified to lead the process—practicing, bar-admitted attorneys, senior enough to accept final responsibility for the results and able to supervise and validate the supply chain (of custody) that turns raw data into evidence before a tribunal.
Responsibilities of Discovery Counsel
The main role of discovery counsel is to guide the minutia of discovery projects from beginning to end. This routinely involves engaging consultants and service providers, coordinating with client-side IT personnel and data custodians, identifying and securing their potentially relevant documents and data, and implementing a process to screen them for privacy, responsiveness and privilege. Ultimately, the discovery counsel is accountable for getting an end-product out the door— delivering a document production on-budget and on-time. Like a factory foreman or general contractor, the discovery counsel ensures that the necessary efforts and resources are planned, aligned and executed within applicable tolerances and limits.
Discovery counsel can support numerous case-related activities, such as:
Additionally, a discovery counsel engaged for multiple cases can help clients develop defensible and consistent routines, and achieve continuous improvement in addressing the discovery needs of the organization.
Reprinted with permission from the November 16, 2015 edition of the 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.