What is the GC’s Role in eDiscovery?
Far too often, the GC’s role in eDiscovery goes undervalued, overlooked, or delegated altogether. What’s wrong with a picture where the GC (General Counsel) or CLO (Chief Legal Officer)—that is, the leaders of a corporation’s legal team—are not involved in high level decisions about eDiscovery?
As General Counsel, you are at the top of the chain. The buck stops with you, often quite literally. When things go wrong, you are the one who gets called on for answers. Absent your oversight, eDiscovery issues can turn into defensibility issues over your legal event methodology, becoming costly at best and catastrophic at worst.
Here is our breakdown of the top 3 primary roles of the GC or CLO in an organization’s eDiscovery processes.
1. The GC’s role in eDiscovery is to PROTECT.
It falls on the GC or CLO to make sure that throughout the entire eDiscovery process—from preservation to collection, processing, review, and productions—no defensibility box goes unchecked. Especially as GDPR and data privacy laws continue to evolve, so do the job responsibilities of many a GC or CLO, who may take on corporate leadership as well as risk and crisis management.
Do you know where your data is? If your organization has serial litigation (read: if you’ve been sued more than once), it’s imperative that you have a system in place to manage your data so that it’s centralized and handled correctly every time. As the head of your organization’s legal department, you should be able to ask and understand the answers to questions like:
- Where do the corporate legal assets reside?
- Where is the corporation’s data stored and who has access to it? (Multiple outside counsels? Vendors?)
- Who is going to host and manage our data once it’s collected for litigation, and how?
- Do we have protocols (workflow, security, etc.) in place and are they being followed?
- When data has to leave my company, will it be safe when it’s not under our control?
GCs may not be writing actual checks, but high-level budget responsibilities typically fall on them from the highest levels of the company. It’s not uncommon for GCs to do ancillary reporting to the Board about costs, particularly those costs related to litigation. The GC’s role in eDiscovery thus includes staying on top of the following:
- Insurance coverages (as they relate to litigation): The GC should review coverage plans and know what types of litigation costs the company bears directly versus those that are covered by insurance policies. (This responsibility is often shared with the organization’s Chief Financial Officer or CFO.) Policy negotiations play a significant part in how an organization manages litigation costs, so the GC or CLO should be involved in those conversations.
- eDiscovery costs: Once you have a clear understanding of the data questions above, you can start looking for ways to control the associated costs, e.g., the costs to hold and analyze data; the cost to review and learn what that data contains and how it’s organized; and the cost to remediate the data (and associated costs and legal requirements) at the conclusion of matters.
One way the GC can protect an organization’s financial well-being is to be on the lookout for common inefficiencies in eDiscovery—many of which are infamous for driving up costs. If you have separate legal matters for which multiple vendors and/or outside counsels are collecting, hosting, and reviewing data from overlapping custodians, you are paying double or triple for the same processes. Consider centralizing your eDiscovery in one place to enable re-use of your data, workflows, attorney work product and institutional knowledge, matter over matter. Not only will that save costs, but it will increase accuracy and help ensure uniform treatment of sensitive and privileged information across all legal and regulatory matters.
(For a case study on how BIA helped a major construction company accomplish this, please refer to Taming the Data Beast.)
2. The GC’s role in eDiscovery is to EDUCATE.
Internal Teams & External Parties
When a legal event occurs, it is the GC’s responsibility to make sure that the important parties know exactly what to do. This includes internal parties as well as outside counsel and vendors. Ideally, you have a company policy that outlines requirements and expectations for everyone in the event of litigation. Even smaller companies with no formalized playbook should have policies outlining what to do when a new case arises. The more frequently your organization experiences legal events, the more crucial it is to have a comprehensive eDiscovery Playbook that outlines the entire process in detail. But more on that later.
As head of the legal department, you are the primary source of legal guidance for the other C-levels at your organization. The GC’s role in eDiscovery should include maintaining relationships with members of the C-suite and educating them on the eDiscovery pieces that fall under their respective purviews. In addition to the fiduciary duties shared with the CFO mentioned above, the GC also should communicate with the CTO (Chief Technology Officer), for example, regarding data collection processes, including data privacy concerns and applicable regulations. The CTO likely has a specific set of tools for collecting data from remote employees, for instance, which also must take into account the location of those employees and the data, as different geography will implicate different privacy laws and regulations. Perhaps HR has overlapping needs for access to that software or data; if so, that’s another relationship to foster. Keeping your department heads aligned and in-step will reduce both risk and wasted costs—monetary and otherwise.
3. The GC’s role in eDiscovery is to DELEGATE.
From an eDiscovery standpoint, a successful litigation journey is one that is efficient, effective, and compliant. To best achieve this, every organization needs a task force, a game plan, and a guidebook—or eDiscovery Playbook – that outlines protocols, processes and tools, and memorializes the game plan. The GC or CLO may not trek deep into the eDiscovery trenches once litigation is underway, but they most certainly should be involved in the creation and implementation of these essentials:
eDiscovery Task Force or Steering Committee
This team needs to know what steps to take immediately following a “triggering” event. They should create (or assign) documentation for managing legal events, including at least:
- how the organization will identify custodians potentially related to a new legal event;
- when and how to issue a legal hold notification to those custodians (and even systems);
- how to conduct custodian questionnaires and interviews;
- how data will be identified, located, preserved and collected; and
- how to track all the above.
While individual organizations make different choices about which eDiscovery aspects to handle in-house, the items above are almost always handled internally, albeit often with expert outside guidance and assistance.
The CLO or GC’s role in eDiscovery should also include establishing consistent workflows and accompanying documentation that spells out the internal and external steps the organization will take when facing a new legal event. A proper eDiscovery Playbook benefits everyone–the GC, their internal teams, outside counsel, and vendors. It enables them to uniformly handle and track each step in the eDiscovery process, which also helps to control associated costs. This should not be a generic checklist, but rather a thorough and detailed best practices guide, customized to the organization. It should provide clear, effective, and defensible processes that the organization can follow to successfully navigate the complexities of each step in the eDiscovery process. At minimum, your Playbook should cover:
Standardized protocols for every step of the EDRM, including:
- Custodian & ESI Identification
- Standard Production Protocols
- Meet & Confer Guidelines
- Document Review
- Foreign Language Document Review
- and More
Detailed policies for handling some specific steps, including:
- Litigation holds and custodian questionnaires
- Data collections and processing
- Data filtering, search terms, analytics & TAR
- Privilege and Data Privacy Reviews
- Quality Control Measures
- Ethical Considerations
The GC’s Not-So-Secret Weapon
The eDiscovery Playbook fulfills the protection, education, and delegation pieces of your role as GC in the eDiscovery process. It ensures that every legal matter is handled consistently and correctly, avoiding the all-too-common and avoidable chaos that eDiscovery otherwise can inflict upon your organization. It improves your organization’s efficiency, defensibility, and cost savings. It will help you fully understand and control the eDiscovery process, secure your participation in high-level eDiscovery decisions, and educate your internal teams, outside counsels and vendors.
Building a Playbook doesn’t need to be a costly or overwhelming task. At BIA, we’ve already created a framework on which we can build your customized process, and we’ve been tailoring it to our clients’ individual needs for close to two decades now. We’ve been around long enough to know which processes, rules and game plans work—and which don’t. We’ve got the perfect weapon for you and it’s not a secret. Reach out today for help building your own eDiscovery Playbook, and know that you are taking a powerful, lasting stride toward fulfilling the GC’s role in eDiscovery at your organization.