By Winifred E. Campbell, Esq.
If you are working in management or at the executive level in a mid-size or large corporation, you may find your company involved at some time in federal litigation. Understanding your role during a litigation, can save time, resources, and money, and can help you to work more efficiently with your legal counsel—saving legal fees, as well.
Discovery—defined as the legal procedures used to gather evidence for a lawsuit—is likely to be one of the most time consuming and daunting parts of any litigation for a corporation. Only a decade ago as a young associate, I spent weeks sitting in a conference room going through boxes and boxes of documents, blueprints, and photos. Today, discovery has changed drastically. Most companies communicate largely by email and instant messaging; offices are paperless. Discovery now focuses on electronic discovery, or collection of information stored electronically, known as e-discovery.
While you won’t be paying your attorneys to spend weeks sitting in a conference room digging through boxes, e-discovery has its own challenges. Computers and servers hold a staggering amount of electronic information which is all subject to discovery. Identifying relevant data and searching through this information can be very time consuming for both your staff and your legal counsel.
The Federal Rules of Civil Procedure (FRCP) were revised in 2015 to limit the scope of e-discovery based on proportionality and to lighten the burden of preserving electronic information subject to discovery. While the courts have recognized the challenges presented by e-discovery and have attempted to write into the FRCP a degree of balance between costs and the necessity of finding evidence, the fact remains that complying with e-discovery demands is challenging.
Your introduction to discovery in a federal litigation will usually be by way of a letter known as a litigation hold letter. This letter advises you of your company’s responsibility to preserve all electronically stored information (ESI). It will advise you to refrain from routine destruction, to preserve metadata, and to protect information that is located on home computers, laptops, cellular data and online accounts. The letter may even require that you obtain signatures from members of management, indicating they have read the letter and agree to abide by it. If a company willfully destroys relevant ESI, it will be subject to sanctions, not the foot you want to put forward in front of a judge who will be deciding your case.
The next time you hear from your attorney on the issue of discovery will be in preparation for the “meet and confer.” This is a conference required by FRCP 26(f) where counsel meet to discuss the bounds of discovery. For example, the parties will discuss initial disclosures, confidentiality of information produced, handling privileged information, and initial search terms and key words. To attend this meeting, your attorney must know which employees are most likely to have relevant information in regard to the lawsuit, how your company stores and preserves ESI, where your company stores ESI, and the capabilities of your company’s IT department to perform searches to gather relevant information.
After the meet and confer, the parties to the lawsuit will exchange discovery demands; i.e., interrogatories, request to produce documents, and request for admissions. Your attorney will review these discovery demands and discuss them with you. It is your job to answer these questions to the best of your knowledge.
The request to produce documents will require cooperation with your IT department. The search terms and employees with knowledge, also referred to as custodians, discussed at the meet and confer will come into play. The discovery demands will likely identify Boolean searches that your IT team will need to perform on your company’s servers and computers in an effort to identify all relevant information to be produced.
Your attorney will take that information and review it using technology-assisted review (TAR) to fine-tune what is relevant and what is not relevant, and to redact or mark both confidential and privileged information. TAR uses a computerized process with machine learning algorithms to distinguish relevant and non-relevant information so that thousands of pages of documents can be reviewed in minutes rather than days. TAR has become very common and cost-effective in the last several years. Sometimes your attorney will recommend a third party with TAR and e-discovery expertise to assist or take-over the search and production of discovery.
The discovery process can take months and sometimes longer than a year. It is important for your company to understand what is involved to make the process more efficient and cost-effective. While this article is a broad brush stroke of what’s involved, your legal counsel will be able to provide greater detail scaled to the needs of your company.