By Deborah Elkins
Dolan Media Newswires
A client may tremble with fear or fume with annoyance when asked to produce electronic data but it’s up to the legal support team to talk the client down from the ledge.
Planning is key, whether a law firm is using its in-house e-discovery staff to collect a client’s data or turning to an outside vendor.
“What to collect and how” are the first issues to tackle when helping a corporate client prepare to respond to discovery requests, said Sara Skeens, a litigation specialist with the Medicaid Fraud Control Unit of the Office of the Virginia Attorney General.
She recommends using checklists because data collection is “like a surgical procedure,” where you’re doing the sponge count. “You need to map all the data,” including employees’ voicemail and their personal mobile device, she said.
It can be hard to find a work-around for a faulty collection process, agreed Monica McCarroll, a partner in Williams Mullen’s e-discovery practice group.
“A lot of people want to let the clients collect [the data] because it saves costs,” she said.
The in-house e-discovery experts “are not averse to that,” she said, but they “would like to work with IT” for the client, so the collection is not just “done in a black box” without input from the lawyers.
McCarroll said the idea is to avoid situations such as a client saying, “I know you told everyone we had a lit hold, but we had to repurpose those laptops, and so I made my own copy of the data” before switching them out.
That employee’s good-faith effort to preserve records may not yield what the lawyers need down the road.
Some cases may be “lower stress, lower controversy” for data collection, said Jeffrey Jacobs, associate general counsel with Document Technologies Inc. Self-collection may work for a contract dispute between two big companies. That case may be a straightforward battle of equals, without a lot of controversy over electronic evidence.
On the other hand, a trade-secret theft case or an employment discrimination suit is more likely to need careful review for possible smoking guns. In a recent Virginia case, an HR department’s email comment about the need to “scrub” a performance review helped a bank employee suing for discrimination get past the summary judgment stage.
Then there’s the client facing a full-on governmental investigation, with potential criminal liability. Document-handling in that case will “need careful forensic imaging,” Jacobs said.
He contrasted the meet-and-confer obligation in federal-court civil litigation, which lets the parties hammer out a framework for e-discovery, to what a corporate client has to do to respond to a subpoena from a government agency, such as the Securities and Exchange Commission. With a government agency, “typically there’s no real leverage” and the client has to accept the government specifications for the data, while “keeping an eye on the downstream evidence game,” Jacobs said.
“With the government, we still try to have that informal reach-out,” McCarroll said. She will use her in-firm contacts, such as former government attorneys, to have a conversation about the scope of a corporate client’s response to the government’s demand for documents.
For instance, if a subpoena seeks all emails from eight people, she will ask about narrowing the initial production by search terms, identified persons or date range, trying to persuade the government agent that they don’t really want to wade through all the “pls pick up some groceries” garbage emails in multiple in-boxes.
If they really wanted “everything, they would have gone for a search warrant,” McCarroll said.
E-discovery teams can expand and contract, depending on the case. McCarroll’s in-house team works directly with law firm clients, but also works with outside vendors the clients may already have used or who have been pulled in for a specific need.