Live Blogging at LTNY 2013 — The Role of Litigation Technology in Government Investigations and Cases
The litigation technology tools and practices used by the government and those subject to investigations can help shape strategy and sometimes outcome. When dealing with the government the procedures can be very different than those which apply in private litigation. Often investigating agencies have preferences for various aspects of discovery, including production format, so being aware of those needs in advance can help streamline a case. This panel addressed litigation technology best practices to help you navigate an often complex landscape.
- Discovery protocols are negotiated on a case by case basis and each government division deals with specific protocol specifications differently. The goal of these protocols is to solve ESI discovery problems early, avoid pre-trial motion, ensure efficiency and properly utilize advantages of technology.
- Protocols are usually evaluated for three primary factors: (1) Proportionality, (2) Opposing counsel considerations, (3) Agency capabilities.
- To effectively create and employ a discovery protocol here are a few of the key principles that the panelists mentioned: (1) Attorneys must have an adequate understanding of e-discovery; (2) Involve not just attorneys in crafting this protocol, utilize your entire litigation support staff; (3) Meet and confer with opposing counsel to discuss any potential future ESI obstacles during e-discovery and subsequently notify the court of any disagreements/ESI issues if an agreement between sides could not be made.
- The negotiation of ESI specifications within a discovery protocol works very similarly to how it does in the private sector. Before negotiating any terms with the government identify what technology/systems you have to work with to properly learn of any outstanding e-discovery issues, which will proactively help prevent any unnecessary conflicts during negotiations.
E-Discovery Beat’s Key Takeaway
Be proactive. It might be against a company’s instincts but when responding to a government investigation/request organizations should proactively start an open dialogue with the government about their e-discovery process right away. By being transparent and collaborative, organizations can gain a clear understanding of what is being asked of them. Ironing out discovery protocols with the government early, at the outset of an investigation will not only save time but also save everyone a lot of headaches.