Nobody would claim that discovery is the most enjoyable part of litigation. Aspiring litigators dream of delivering eloquent closing arguments to a jury in a high-stakes case; they don’t fantasize about answering interrogatories or reviewing documents for hours on end. Technology and cool new tools have improved the process greatly since the days of manual document review, but discovery is still, at best, a necessary evil.
But discovery doesn’t have to be as awful as it so often is. “Litigation Procedure: Discovery Strategies and Best Practices, Federal Rules Changes, and Managing the Cost of Discovery,” a panel at the 2016 Annual Meeting of the Association of Corporate Counsel (ACC), offered some practical pointers for making the process less painful. It featured the following experts:
- David Cross, Partner, Morrison & Foerster LLP
- Stephen Dellinger, Partner, Littler Mendelson
- JC Miller, Ex. Dir. & Sr. Corp Counsel Litigation and Employment, XO Communications Services
- Alex Ponce de Leon, Corporate Counsel, Google Inc.
Here are some recommendations that emerged from the discussion.
1. Familiarize yourself with the recent amendments to the Federal Rules of Civil Procedure – and use them to your advantage.
David Cross of MoFo opened the discussion with an overview of some of the key changes to the Federal Rules relating to discovery (which we’ve discussed before; see, e.g., Everything You Need to Know About The New FRCP Amendments). Looking at the big picture, the rule changes seek to encourage cooperation between the parties, to reduce the cost of the process, and to improve its efficiency.
To this end, Rule 26(b)(1) now contains factors regarding the scope of discovery and its proportionality. Discovery is no longer just about information that’s relevant; the information sought must also be “proportional to the needs of the case” (and also “relevant to any party’s claim or defense,” not just the general subject matter of the litigation). As Chief Justice John Roberts has explained, “lawyers must size and shape their discovery requests to the requisites of a case [and] eliminate unnecessary or wasteful discovery. The key here is careful and realistic assessment of actual need.”
So what does this mean for in-house lawyers? First, think about opposing discovery requests that you view as unduly burdensome, even requests that a few years ago you would have resigned yourself to complying with — after the 2015 amendments, you have better grounds for objecting. Second, make sure that your outside law firms are familiar with the 2015 amendments and following them, both on a large scale (e.g., discovery is now more limited) and on a smaller scale (e.g., now objections to specific discovery requests must be specific, not just boilerplate — see Rule 34(b)(2)(B) and (C)).
2. Properly preserve electronically stored information (ESI) – or else.
Rule 37(3) provides for sanctions if a party failed to take “reasonable steps” to preserve electronically stored information (“ESI”) relevant to a case, and the ESI cannot be restored or replaced through additional discovery. There hasn’t been much case law on this yet, but the cases so far indicate that the touchstone here is reasonableness, not perfection. For example, in one case a judge did not impose sanctions for a party’s failure to save one individual’s web browsing history from years ago; such browser history gets deleted all the time, for entirely innocent reasons.
How can you as an in-house lawyer protect your company against sanctions for failure to take reasonable steps to preserve ESI? Alex Ponce de Leon of Google offered some advice:
- Document your preservation steps.
- Proactively think about what “reasonable steps” might include in your case (beyond just the standard litigation hold).
- In advance of litigation, develop a thoughtful information governance regime, so your colleagues will know what they should keep and what they should delete (as opposed to requiring everyone to keep everything indefinitely, which is not a smart approach to IG).
3. Evaluate the team you have working on litigation matters, and make adjustments as necessary.
When it comes to discovery, do you have the right talent in place? This involves asking yourself a few questions.
First, do you have the right balance between handling work in-house or sending to outside law firms? Most work gets sent out — in fact, 67 percent of the work that in-house lawyers send outside is litigation work — but if your caseload and litigation budget are big enough, consider handling more litigation in-house (as companies are increasingly doing). Run some numbers based on your past few years of litigation and make an informed decision, instead of just automatically assuming that litigation can’t be done in-house.
Second, for your outside counsel, who’s staffed on your matters? Now that leverage has shifted from law firms to in-house legal departments, this is something that you have the power to look into — and make requests or demands about. For example, you can implement the (controversial but increasingly popular) “no junior associates on my matters” rule (or at least no juniors that my client will pay for).
As one participant quipped, “Associates who are two to three years out of law school are lovely people, and their mothers are very proud of them, but they’re not terribly helpful to me.” In many cases, good paralegals are better to have on your discovery-intensive matters than untrained associates — and the paralegals are cheaper too.
4. Use technology to make discovery more efficient and less expensive.
As we constantly chronicle in Above the Law’s extensive legal technology section, innovative new solutions allow lawyers to work faster and more effectively than ever before. Some of these technologies can be used to minimize the burdens of discovery.
If you’re working on a document-intensive case, use data rooms, file-sharing sites, and other forms of cloud technology to exchange and work with document productions. To reduce travel costs, use telepresence, Skype, and other forms of video technology to prep witnesses or even to conduct or defend depositions (especially for witnesses who are not crucial). And, as an in-house lawyer, think about whether your company’s own technology team might be able to help with discovery; depending on where you work, these folks might be better than the law firm’s own IT team – and cheaper too.
5. In appropriate cases, seek recovery of fees and costs for time spent by in-house counsel on litigation.
This is often overlooked, but a number of state and federal courts allow in-house counsel to seek recovery of fees for the time they’ve spent on litigation. There are limits on this; for example, fees can’t be recovered just for acting as a liaison between outside counsel and company employees, or for work that’s duplicative or unnecessary. But when an in-house lawyer really digs into a litigation and invests a lot of time into it, performing tasks that otherwise might have been performed by outside counsel, recovery of fees to reflect that time can be sought. (One downside: if you want to recover fees as in-house counsel, you’ll need to give up one of the great perks of in-house life — not having to bill time — and maintain contemporaneous timesheets, just as you did during your law firm days.)
Discovery, especially electronic discovery, isn’t going anywhere, and it will never truly be “fun.” So you might as well try your best to make it better.
2016 ACC Annual Meeting [Association of Corporate Counsel]
Earlier: Everything You Need to Know About The New FRCP Amendments
Legal Technology And Innovation: Ediscovery, Machine Learning, And Transactional Practice, Oh My!
David Lat is the founder and managing editor of Above the Law and the author of Supreme Ambitions: A Novel. You can connect with David on Twitter (@DavidLat), LinkedIn, and Facebook, and you can reach him by email at [email protected].
