Second Time Around: Inheriting an E-Discovery Case
By Scott Meyers and Lenor Marquis Segal, Ellis & Winters LLP, North Carolina
If you are your client’s second counsel, make them wish they had hired you in the first place. Inheriting an e-Discovery matter is rife with opportunities for retreading your predecessor’s mistakes and can be a minefield without the proper preparation and planning. This article provides key tips and strategies on taking over an e-Discovery-intensive case from a “fired” law firm to help lawyers and their litigation support professionals manage the transition effectively and dodge some of the typical pitfalls.
Under almost any circumstances, taking over a case from another firm can be fraught with peril. Taking over a case with a significant e-Discovery component is even more daunting. The process and procedures used by the first law firm to gather, sort, compile, and produce ESI will color and influence your representation for the remainder of the case. And while it can be a happy and flattering occasion to be called upon for your e-Discovery expertise, it also means that in the mind of the client, something has gone so wrong that it justifies calling the cavalry. In other words, you are dealing with a client who has already experienced dissatisfaction and/or distrust with respect to its counsel, and who is very likely angry and disappointed concerning the costs and time involved shepherding an e-Discovery-intensive matter.
Coming on the heels of a failed attorney-client relationship, transitioning an e-discovery case to a new law firm may not only be awkward, but it also has the potential for new risks, such as the risk that you will be held responsible by the court and/or the client for the sins of the former law firm. This article aims to help lawyers and their litigation support professionals manage the transition effectively and hopefully dodge some of those pitfalls.
Diagnosing the Break-up
The first order of business when taking over any case from another firm is to determine the source of the problems behind the move including what, from the client’s perspective, went wrong with the prior law firm’s representation. Assuming for the purposes of this article that your client parted ways with his former counsel at least in part for e-Discovery- related reasons, you need to learn about, and evaluate, all e-Discovery activity in the case to date. It may be relatively easy to determine the problems from external events (such as sanctions issued by the court or a significant data loss), or it may be something more subtle that happened on an interpersonal level. It could be that former counsel did not properly prepare the client for the cost and time involved in e-Discovery cases. Of course, it may also be all about value and price, especially if a large case has shrunk, or about capacity if the reverse has happened and a smaller case has morphed into a larger one.
Changing counsel is not done lightly in most circumstances. The process of determining “why us and not them” is certainly made easier if the client has been your client in the past, or is currently your client with respect to other matters, but it also may be dependent on how culturally candid the client is. Of course, the more upset the client is, the more open they might be inclined to be about the parade of horribles they have endured. In any event, listen very carefully to your client. The client’s complaints about its former law firm are the very same complaints it could have about you if you are not attentive and considerate of the client’s needs.
Knowing your client’s sensitivities will make your job that much easier. If you find it difficult to determine the source of the strife with prior counsel, you may try inquiring about the client’s expectations, and ask for at least five specific things about the prior representation that left the client dissatisfied. Although this is not a magic number, five issues should get you to the root of the schism. This client is likely more prone to disappointment than a new client, and if those old wounds are hidden from you, you will be caught unawares when they are reopened.
Second, you should endeavor, with your client’s cooperation and permission, to obtain all of the former law firm’s e-Discovery case files as quickly as possible. These files are indispensible in the sense that they tell the story of the defensibility of the processes and procedures used to date. While the transfer of the actual raw data and access to any document review database is obviously important and usually happens rather rapidly, the data alone is not enough when you will be called upon to defend the decision-making process in court. The longer you wait to obtain the files, the more material grows legs, data disappears, and institutional memory fades. Of course, your client may be engaged in a nasty divorce with its former law firm that is (rightly or wrongly) impeding the release of these files. Emphasize with your client the need to transfer the files in the e-Discovery context.
Know the Boneyard
Third, if practicable, it is extremely helpful to establish and maintain a contact at the former law firm who was involved directly with the document collection, review, and production process. Even the best documented paper-trail needs context. A partner contact may have only a superficial appreciation for what was done on the case, and naturally limited time and interest in facilitating a new relationship between you and its former client. Therefore, someone who had their hand in the day-today grind, such as an associate or paralegal, is usually ideal for this purpose. This person needs to know where the bodies are buried, so it is helpful if he or she was the gravedigger. In a perfect world, this person would also know how to contact the other personnel who worked on the case and mine them for information.
Know Your Enemy
Fourth, it may be a good idea to meet and confer with opposing counsel about the e-Discovery process to date. They may have concerns about your new client’s prior productions that they have not yet disclosed. If the relationships between opposing counsel and prior counsel were particularly strained, your entry into the case may go a long way to defusing the acrimony and restoring the case to a manageable footing. In fact, there may be an opportunity to discuss revised or simplified procedures that would address opposing counsel’s concerns and be more cost effective for the clients. Creative thinking and cooperation amongst counsel in e-Discovery matters can be employed at any stage of a case, and this is a great time to reevaluate how things have progressed.
Know Your Friends
Fifth, examine existing vendor contracts carefully. Those contracts should be reevaluated based on the current status of the case and renegotiated if appropriate. Depending on your client’s historical relationships with the vendors, seriously contemplate switching vendors to your preferred list, although such a decision should not be made lightly. Get your client’s honest appraisal of how the vendor relationships were working and determine whether the vendors played a role in the client’s dissatisfaction. Review prior invoices and get a sense of how billing has transpired. You may need to change how work is described when billed, for example, if the proper level of detail just is not present.
If you do decide to keep the current vendors, sit down with each of them face-to-face very early in the transition process and discuss your expectations. Yours may be very different from the last law firm’s, especially as to items such as depth and frequency of communications. It seems a bit dramatic to say that there is a new sheriff in town, but indeed there is.
Leave No Stone Unturned
Sixth, it is critically important to identify any problems or potential problems that may exist so that they can be addressed. It is easy for issues to be dropped during the transition, and this could lead to substantial problems. Therefore, insist upon honesty from your client and from all vendors as to what the problems have been. You need to be apprised of even the smallest issues. Document in detail everything that the client or a vendor brings to your attention, the date on which you learned of it, the steps already taken by the client and/or vendor to address it, and your action steps planned going forward. You may have some very serious problems to remediate. You do not want to be left holding the bag on these, either because someone has dropped the ball, has intentionally tried to pass you the buck, or has engaged in wishful thinking that the problems can be swept away and forgotten. As you well know, law firms and lawyers can and have been sanctioned for e-Discovery errors and transgressions. Make sure you are not the next example of e-Discovery gone wrong.
Be Efficient but Cautious
Finally, resist the temptation to throw the baby out with the bathwater. Use and build upon what the prior firm accomplished, such as custodian questionnaires, interview memoranda, litigation holds, privilege logs, chains of custody, data tracking logs, and any mappings of systems. Your client already paid for this work, so let it continue to work for everyone to the extent it can.
However, there is a reason why you are taking over the case. If the reason is quality, then that speaks even more to the need to take everything with a grain of salt, double-check the former law firm’s work, flyspeck the vendor’s work, and read everything with a critical eye. You may very well need to revisit one or more custodians and repeat or supplement collections. But your client will be watching to make sure that you are not revisiting custodians without a sound basis. Be prepared to defend any action that the client will view as you “re-doing” what it has already paid the last law firm to accomplish. You may need to remind your client that, regardless of whether counsel had stayed the same or not, if a case has been kicking around for years, what might have been “state of the art” in e-Discovery at the matter’s inception might not comport with currently accepted practices and procedures.
Taking over an e-Discovery case can be a daunting task, but with the preceding tips you are well on your way to easing the transition to a beautiful second marriage.
Authors: Lenor Marquis Segal & Scott Meyers from Ellis & Winters LLP in North Carolina