Litigation, particularly complex litigation, can be just that, complex. The complexity of litigation necessarily requires the ability to manage multiple moving parts in all phases of a case in the most efficient and effective way possible. Perhaps one of the most time-consuming and distracting phases of a case is the discovery phase, particularly so when a case involves the discovery of electronically stored information. So how does an exceptional trial lawyer maintain focus on the substance of a case when there are any number of eDiscovery issues to resolve? One method is to retain eDiscovery co-counsel.
Managing a case involving eDiscovery issues means understanding the eDiscovery lifecycle with all of its intricacies, understanding the applicable jurisdictional rules, possessing the ability to communicate with opposing parties regarding eDiscovery issues, as well as the ability to communicate with vendors regarding some of the more technical aspects of eDiscovery. These things take time, not to mention a certain level of proficiency. Your firm may not have adequate resources available to devote to eDiscovery issues, or perhaps it is more beneficial for your case team to focus on the merits of the underlying case. These are just a couple examples of situations where having eDiscovery co-counsel may prove to be beneficial.
The decision to bring eDiscovery co-counsel on board will require a bit of planning and a lot of communication in order for the relationship to work. The roles of counsel need to be clearly defined at the outset and all groups involved will need to establish a plan for communication and overall strategy throughout the case. Thinking of the relationship in the same context as an attorney-client relationship may be useful as a guide. Attorneys meet with clients at the outset of a case and establish parameters and general strategy. Attorneys then handle the day-to-day decisions. If a situation arises that will require a large expenditure of time and money or a decision needs to be made that will have a large impact on the case, i.e., settlement, the lawyer consults the client and obtains feedback. The same protocols may be used with eDiscovery co-counsel. Once the general case strategy is set forth and all high-level decisions are made, eDiscovery co-counsel will handle all talks related to eDiscovery and will coordinate an eDiscovery vendor to accomplish the necessary tasks. All components of the eDiscovery lifecycle will be handled by your eDiscovery co-counsel, from identification to review and even presentation at trial.
The use of eDiscovery co-counsel may result in a much more streamlined and focused case, not to mention significant cost-savings for law firms and, more importantly, clients. With the right team in place, the benefits obtained from teaming up with eDiscovery co-counsel may be invaluable.
Neda Shakoori is an attorney with McManis Faulkner. Her practice focuses on civil litigation with an emphasis on commercial and business law matters. She is currently leading the firm’s eDiscovery Initiative and oversees all ESI-related issues in the firm’s cases. She also presents MCLE programs relating to eDiscovery. For more information, please visit mcmanislaw.com.