Counsel to Counsel - May 2008 - (Page 27)

confidential information to the extent possible under the circumstances,” explains Elizabeth Davenport Scott, a Williams Mullen litigation partner. Talk about how attorney-client privilege for disclosures fits into the interview process and how it relates to an email communication identified as privileged that the employee may have seen. When the employee truly understands, it helps secure full cooperation. The pre-discovery interviews also begin to prepare employees who will eventually face questions in depositions and at trial. Scott adds, “Often they are worried about disclosing confidential trade secrets in court. Make it clear that the company will be at an even greater disadvantage with the judge by not disclosing everything material to the case.” scanning—deletions on electronic files can be revealed. Also check document labeling and numbering. “When reviewing your documentation, take the perspective of opposing counsel and prepare answers to tough questions about why there may be gaps in email sequences or which privileged documents are excluded.” Most federal courtrooms now have individual juror monitors for real-time document display during trial. This is a tremendous communication advantage for complex issues. Calling up the right document is only possible if the document has been identified and properly weaved into the presentation of your case. “You can have good facts and positive arguments,” says Fowler, “but if you haven’t handled discovery properly, you lose your advantage. There is nothing to fear in e-discovery if you’ve followed a thorough, step-by-step process. Doing e-discovery right strengthens your position with the judge and puts you in the best position for presenting your case in the courtroom. It establishes credibility and creates leverage during discovery and at trial.” Show you’re Serious: The rule 26 Conference and Beyond “In-house counsel must convey, ‘We’re serious and we’re ready’ from the first meeting,” says Belt of the Rule 26 conference. In the conference, parties determine the form in which ESI is provided. Most parties agree to exchange frozen PDF or TIFF images or WAV files for voice records. Both sides convey to the judge their agreement on the form and extent of production. “Judges appreciate confirmation that both sides are taking the process seriously and are complying with the e-discovery rules,” notes Belt. The Federal Rules contemplate providing initial disclosures 14 days after the conference. Counsel often negotiate the production of responsive ESI to occur 30 days after the conference. Typically the initial disclosures are produced 30 days after the conference. Williams Mullen Litigation Partner Kathleen J.L. Holmes uses a formal document production checklist and time line for e-discovery production. These “low-tech” tools keep e-discovery problem-free in what is a short window for production after the Rule 26 conference. “Plan to have your electronic documentation by the 21-day mark, to allow for quality checks on the alignment of emails and files, the quality of images, the completeness of redactions,” advises Holmes. “Be sure to make deletions on hard copies before “n-housecounsel I shouldn’tjustview theseasadministrative tasks.Havingtocorrect amistakeoromission damagestrustinyour discoveryprocess, whileacompleteand organizedprocess showsopposingcounsel thatyou’reserious.” Holmes believes that adhering to a production checklist avoids simple but potentially major oversights, like making sure you keep a duplicate copy of the document CD or hard drive you provide to opposing counsel. “In-house counsel shouldn’t just view these as administrative tasks,” she warns. “Having to correct a mistake or omission damages trust in your discovery process, while a complete and organized process shows opposing counsel that you’re serious.” Williams Mullen uses cutting-edge technology and expertise to manage any case and volume of electronic information from discovery through trial. Its customized electronic discovery and trial technology services ensure compliance with ESI rules, locate pertinent case information and create a seamless presentation of evidence in court while minimizing time and expense. Article Participants: william w. Belt Jr. Partner, Litigation and Leader, E-Discovery Team wbelt@williamsmullen.com Peer Review Rated Calvin w. “woody” Fowler Jr. Partner, Litigation and Chair, Litigation Section wfowler@williamsmullen.com Peer Review Rated Kathleen J.L. Holmes Partner, Litigation kholmes@williamsmullen.com Peer Review Rated Elizabeth Davenport Scott Partner, Litigation escott@williamsmullen.com Peer Review Rated Trial Advantage “Clients fear the expense and complexity of e-discovery,” says Calvin W. “Woody” Fowler Jr., “but when done right, it creates a positive impression with both the judge and jury.” The head of the Williams Mullen Litigation section, Fowler believes that properly structuring the e-discovery process to support your trial theme is a substantial advantage once court proceedings begin. For instance, identifying and coding the documents that support key points in the company’s case during discovery is critical. This allows for the use of document management and presentation software that organizes and searches documents and databases and displays key documents at the right moment during trial. martindale.com/c2c May 2008 27 http://www.martindale.com/c2c

Table of Contents Feed for the Digital Edition of Counsel to Counsel - May 2008

Counsel to Counsel - May 2008 Contents Harassment Policies NEC Corporation of America and Duane Morris LLP Lost or Stolen Data: Minimizing Fallout On-Boarding the Board Drafting Fair, Efficient and Enforceable Arbitration Agreements Responding to Counterfeit Products Crafting an English-Only Workplace Policy Distressed Debt: New Players, Global Sophistication Make Restructuring More Complex IP Confidential: Plan Ahead, Act Fast to Protect Your Trade Secrets Adverse Changes: Think Ahead in a Strained M&A Market Optimizing Web 2.0 Technology: Expanding Your Professional Network Union Pacific Railroad Company and Patton Boggs LLP Warming Warning: Develop Your Climate Change Strategy Now Risk Sharing: Expect New Obstacles and Expenses in Syndicated Loans E-Discovery in Action Diversification at the Gate Energy

Counsel to Counsel - May 2008

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