Legal Operations

Who Calls The Shots Anyway? In-House Or Outside Counsel?

In most cases, the client is the one who ultimately pays. Fix the situation before the situation fixes you.

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Mike Quartararo

Every once in a while, corporate legal operations personnel need to be a little more assertive with outside counsel. Look, I’ve said it here before — legal operations folks and general counsel across the globe can no doubt control spending on outside counsel, but they need to be willing to risk relationships with outside counsel. That risk, it seems to me, is the only thing standing between outside counsel spend and the budget. Like any professional services arrangement, the client should be calling the shots.

Why am I saying this? Because I recently attended the Infusion ’18 conference held by eDiscovery and project management software company Exterro and I sat in on the judicial panel. Noted jurists from across the nation were discussing some of the usual topics related to discovery of electronically stored information (ESI), and among the discussion points were things that go wrong during the eDiscovery process and what can be done about them.

One of the most cogent points made during the session was that in-house legal departments have the ability to control eDiscovery issues. It’s a simple proposition, really, and the point I’ve been trying to make for years. If your outside counsel is combative and reticent when it comes to resolving eDiscovery issues with opposing counsel, it seems to me that the GC or associate GC in charge of the matter can tell their attorney to cut the crap and cooperate on these issues.

Other pieces of wisdom from the panel: First, in most jurisdictions, the jurisprudence of eDiscovery is largely an anomaly. There are courtrooms where you will find learned jurists who are tech-savvy and understand the issues. But these are the exception, not the rule. Many courts, particularly in state courts where there simply are no eDiscovery rules, don’t want to deal with eDiscovery issues. It is therefore prudent to make your arguments about eDiscovery issues short and to the point. And in smaller cases it is counter-productive to argue about eDiscovery unless the facts of the case really turn on an eDiscovery issue.

Second, when things do go wrong with eDiscovery, things can really go wrong. Typically, where there’s smoke, there’s fire. But don’t be so quick to jump all over opposing counsel until an appropriate inquiry is made. Meet and confer does not mean that you sent an email and counsel did not respond. Make a genuine effort to iron out eDiscovery issues with counsel before heading to the courthouse because the last thing courts want to do is get involved in ancillary litigation about just eDiscovery issues.

Finally, there’s an adage, from the world of project management, that really fits appropriately in the eDiscovery arena. It goes like this: Document what you do and do what you document. Perhaps the best piece of advice to come from the judicial panel was to keep contemporaneous records of your eDiscovery process and decisions. This will not only enable you to defend your process if or when it is called into question but will also provide valuable project metrics that will assist in future eDiscovery project planning.

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At the end of the day, when things go wrong in eDiscovery and courts are looking for accountability, it is typically the client corporation that is punished for wrong doing. Sure, occasionally outside counsel is held accountable as well, depending upon the facts. But in most cases, the client is the one who ultimately pays. And let’s not forget, too, that when it comes to budgeting, it is not uncommon for 70 percent of a litigation budget to go to discovery issues. So, why wouldn’t in-house counsel want to better control the eDiscovery process?

Mike Quartararo is the managing director of eDPM Advisory Services, a consulting firm providing e-discovery, project management and legal technology advisory and training services to the legal industry. He is also the author of the 2016 book Project Management in Electronic Discovery. Mike has many years of experience delivering e-discovery, project management, and legal technology solutions to law firms and Fortune 500 corporations across the globe and is widely considered an expert on project management, e-discovery and legal matter management. You can reach him via email at mquartararo@edpmadvisory.com. Follow him on twitter @edpmadvisory.

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