The Federal Rules of Civil Procedure require all parties to meet at the beginning of a case to talk about how to handle electronic discovery, and there are traps for the unwary.  Most notably, failing to request that electronic data be produced "in native format" allows your opponent to produce it any form reasonably kept in the ordinary course of business.  If only paper documents show up in response to your document requests, you won't have access to any of the "metadata" that can make electronically-stored documents so much more valuable as a discovery device than documents produced only in hard-copy form. 

Trying to fix such mistakes later can be quite costly, if it can be done at all.  In a recent case before the D.C. Federal District court, a magistrate judge imposed sanctions on both parties following a motion to compel production of e-mails in native format, stating, "two thousand dollars is not a bad price for the lesson that the courts have reached the limits of their patience with having to resolve electronic discovery controversies that are expensive, time-consuming, and so easily avoided by the lawyers' conferring with each other on such a fundamental question as the format of their productions of electronically stored information." 

The message is clear--formulate a specific plan for electronic discovery from the beginning of the case, and communicate your expectations to opposing counsel.

Your business faces significant risks when confronting litigation, investigations or regulatory matters involving electronically stored information. Despite the gravity of potential consequences, most companies are still struggling to understand what the legal requirements are and how to develop a comprehensive plan to manage electronic information when the necessity arises. 
 
Most organizations suffer from a severe lack of understanding, preparedness and enforcement on how to manage their Electronic Information. At least one study suggests that approximately half of companies have no plan in place at all.  As electronic communications increase exponentially each year, the issues will become ever more problematic for companies that fail to educate themselves and take action. Moreover, the costs associated with fines, sanctions and lost cases could be debilitating to some corporations. The bottom line is, it pays to be prepared.

Whose responsibility within the organization is it to create a viable Electronic Information plan, and who is accountable if the plan fails?  While the overall responsibility of creating an Electronic Information policy lies largely with lawyers, Electronic Information is a business issue that affects nearly every department. A cross-development approach to Electronic Information involving legal counsel, the Board, the Executive team, IT division and the compliance department is crucial. If a cooperative approach is taken, accountability and responsibility will be shared by all those involved.  Additionally, making enforcement a shared responsibility will better ensure compliance.

Incorrect handling of Electronic Information in litigation and investigations leads to a number of serious consequences for organizations.  Monetary fines, issues and evidence sanctions, and even default judgments are becoming more and more common consequences of a litigant's failure to adequately manage the retention and production of Electronic Information.  Consequently, senior decision makers need to take ownership of this issue and ensure that a multi-disciplinary Electronic Information team works together to develop a policy and enforce it within the organization. Organizations that choose to take control of their Electronic Information practices are emerging stronger and better equipped to protect informational assets, increase operating efficiency and realize cost savings.

One of the unique challenges of being a trial lawyer is handling the emotional roller coaster that comes with having a hotly disputed case settle on the courthouse steps. 

Although the vast majority of cases settle before trial ever begins, a lawyer cannot count on that happening, and so must prepare as though trial is a certainty.  This means developing a theme, marshaling the evidence, preparing witnesses, jury instructions, evidentiary motions, opening statements, and all of the many other tasks that a diligent lawyer must perform to be prepared to empanel a jury and present his client's best case. 

Indeed, preparing a lawsuit for trial is much like preparing to go into battle--the lawyer, like the soldier, must update his intel on the enemy, check his weapons and ammunition, confirm his strategies (is there a primary and secondary plan of attack, defense, retreat and surrender?), survey the "lay of the land," and most importantly, mentally prepare for the coming fight.  Only with this kind of thorough preparation can a soldier or lawyer confidently enter the battlefield (or courtroom) and face off against a hostile adversary.  And much like a soldier waiting in a foxhole before confronting enemy fire, the lawyer on the eve of jury selection has an excess of adrenalin and emotional energy pumping through his veins.

An eleventh hour settlement renders moot all of the lawyer's trial preparation, and can result in a huge emotional let-down.  Like a battle that ends before the soldier gets out of the foxhole, a case that settles on the eve of trial leaves the trial attorney feeling conflicted and dissatisfied, a combination of relief and disappointment.  After mentally and physically preparing for battle, it is often difficult to put down your arms and acknowledge a truce rather than face down the enemy and demonstrate your superiority and might. 

But in the end, we must remember that we are merely advocates for our clients' interests, and when the client is ready to settle the case--even on the courthouse steps--the lawyer is ethically bound to put aside his ego and his own interests, and do that which the client desires.
 

Welcome to the Goodstein & Berman LLP law blog.  

Here you will find news, discussions and opinions about issues and developments in California and federal law on subjects including litigation and trial practice, business and commercial law, insurance, real estate and labor and employment law. 

We hope to use this space to educate, entertain and inform, as well as to stimulate discussion and debate on topics that are important to civil litigators and their clients with disputes contemplated or pending in California state and federal courts.

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