By: Lenor Marquis Segal: Associate Attorney at Ellis & Winters LLP, North Carolina
Admitted in California, New York, and North Carolina, Lenor Marquis Segal is a twelve-year veteran of commercial litigation who has developed a special interest in the challenges and opportunities of e-Discovery.
Congratulations: you have a new job with a new firm and your client with the “e-Discovery case” wants to come with you, the only “e-Discovery” expert lawyer that it trusts to represent it. But it may not be as simple as throwing the case in your pack and walking it down the road once conflicts have cleared. A new law firm may involve a new culture, and a new philosophy towards that body of law and ever-changing legal practice called “e-Discovery.” This article aims to ease that process of bringing an “e-Discovery” case to a new law firm by issue-spotting some possible pitfalls in advance.
If you can, look before you leap shops. First, your new law firm may have preferred vendors that would represent a change from those you and your client have been working with, or the new firm may even have its own in-house capabilities for document collection, review, and production. Either way this presents an excellent opportunity to re-evaluate your pre-existing vendor relationships, depending on your client’s tolerance for this amount of change at one time. Hopefully your new situation is not one where the law firm demands that you use certain vendors, which could cause serious friction with your client, not to mention disruption in running your litigation. So before you walk in the door, while vetting your new law firm opportunities, you should ask about flexibility in meeting client needs through vendor choice, especially where you are bringing clients with you.
Second, your new law firm may have a different attitude towards “e-Discovery.” Hopefully in the interview process you eliminated opportunities where your expertise as an e-discovery guru was not going to be valued or respected. There are definitely places where such folks are considered second-class citizens, as compared to attorneys who may be viewed as more intellectual or academic, or as compared to attorneys who do not so visibly appear to be advancing firm resources each month through outlays to vendors and contractors. If your new firm does have its own in-house capabilities, that is one potential positive sign that your skills will be taken seriously and appreciated, but you also need to beware if the “e-Discovery” attorneys, paralegals, and litigation support are kept in too much of silo that they are not integrated into the fold. Especially if you are bringing clients with you, who are coming to the new firm because you have shown you know what you’re doing in e-Discovery, you should expect to be treated not just as a specialist but also as one of the gang.
Third, your new law firm may have a different approach to certain projects such as staffing document reviews, whether with on-staff attorneys, a special stable of oft-used contract attorneys, or reviewers hired through an outside vendor. For example, your new law firm may have a set of document reviewers that they trust implicitly, but whose resumes you have never analyzed the way that you would have had you been hiring the reviewers off the street. This is a tricky balancing act: while the level of faith should be there that your new firm employs skilled and careful reviewers, it is also up to you to nip any problems in the bud early to safeguard your client from poor work product. This is an issue not so easily dealt with before you switch shops, and will probably involve figuring it out once you arrive and take stock of the situation.
For instance, one can imagine some rather dicey political issues to navigate here in delicately removing a reviewer from a project that your new law firm might love for historical or personal reasons, for example, but whose work ethic or quality of which you do not have such a high appraisal. Ultimately, your role is to try to protect your client from negative outcomes. One would hope that your new law firm would be receptive to your evaluation of their contractors or employees, but realistically the smarter strategy in dealing with someone your new law firm knows better than they know you, and perhaps has more loyalty towards, is to attempt to prevent problems before they start. As much as possible, find out what the water-cooler back-story is about the reviewers, meet with them in-person and set firm expectations in advance, check in regularly, and then monitor them with the same care you would any reviewer.
This same advice applies in the paralegal situation, although it requires even a more skillful touch. The better reaction to encountering a paralegal, for instance, who is maybe not thoroughly trained in e-Discovery, is to constructively educate him or her, not to go around making enemies at your new firm through behind-the-back complaints and criticisms (or yelling matches in the hallway for that matter). A blank slate, or even a messy slate, can present a great opportunity to be a teacher, if attitudes are open on all sides.
Of course, as a new attorney on the scene you might meet with resistance, and some creativity may be required. You may find that the paralegal or assistant assigned to “e-Discovery” is not the individual who secretly would be very interested in learning it. Sometimes being the new kid on the block allows you to have that outsider perspective and tap into new talent. One simple way to do this is to host a lunch on “e-Discovery” and see who shows up, in particular if it’s a brown-bag (although you should provide cookies). You might be the first person who ever asked: who wants to do e-Discovery?
All in all, this should be a happy situation: the new firm wants you, the client wants you, and you are doing the e-Discovery work you excel at performing. Forewarned about the possible tensions outlined above you will be forearmed to tackle them head-on.