May 17, 2010

IQPC eDiscovery Panel-Roles of In-House Counsel and Outside Counsel

Vincent Miraglia, Chief Counsel - Employment Litigation & Electronic Discovery International Paper
Vickie Lee Clewes, Senior Manager, Commercial Legal Affairs, Gilead Sciences, Inc.
Moderator, Wayne C. Matus, Partner Pillsbury Law Firm

Wayne Matus started the discussion rolling by asking the panel, "What keeps you up at night?"
There were two answers:
  1. For things like government subpoenas and investigations, it is very hard to have processes already in place, so managing the discovery is very challenging. 
  2. For inside counsel, it is very difficult to manage many legal holds and keep mindful of when they "anticipate" new litigation. 

The panel noted it was difficult to have a cohesive company-wide plan. They still had to address the individuality of each office/department while balancing the tie between discovery and risk.

Vinnie thought that "less is more" and that he does not want all of the data, just the relevant stuff.
He gave an example of PST files.  They had established a delete policy (60 or 90 days) and used legal hold and archiving tools to move and archive necessary email. 

They referred to the Zubulake case (6) and explained that since "terminating employees" could lead to litigation, a best practice would be to freeze all data for terminations for a set period of time.

Question from Wayne-What about the fact that they may get hit with a lawsuit in a new area?   The panel believes in meeting and discussing potential new stuff often with outside counsel.  They also found that, almost always, outside counsel is conservative about when legal holds are necessary. 

What keeps Wayne up is the eDiscovery process maps he creates with his clients do not say all decisions should be documented.  For example, "this is why I did or did not issue a legal hold."

Vicki thinks they do need to document more.  Since we are shooting for "reasonableness" better to show what you considered at the time.

Question from Wayne-How important is communication between inside and outside counsel?
Vinnie's response-Keep it like a working partnership so Vinnie may respond to some discovery requests and outside counsel may respond to others.  He thought that the legal bills go down with better communication.

1 comment:

Brad said...

Cary, thanks for posting your thoughts from the conference. It sounds like a very worthwhile discussion, and certainly reinforces the importance of creating a fact record of steps taken in response to a preservation obligation. Too often when relying on manual record keeping, we fail to take the time to document our decisions. Defending based on recollection is always far tougher.