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Alextronic Discovery
An Electronic Discovery Blog covering News, Articles
and Thoughts for the Legal and Corporate Community Author: Alexander H. Lubarsky, LL.M., Esq. - alubarsky@enterusa.com - Tel. (415) 533-4166 OR 800-375-4222 THIS BLAWG IS NOT AFFILIATED WITH THE WEB SITES WWW.DISCOVERYRESOURCES.ORG OR WWW.DISCOVERYRESOURCES.COM


Monday, December 29, 2003

Litigation Readiness... Don't Blunder.  

Litigation Readiness... Don't Blunder.

As an undergraduate student of literature and poetry and a graduate student of law, I quickly realized that attorneys could stand to learn a lesson or two from those noble and romantic poets. As I traded the readings of Allen Ginsberg for the dryer text of Ruth Bader Ginsburg, I could not help but see the wisdom of the poets providing a shining light in the dark and chaotic battles of so many litigators.

My favorite poem is "The Charge of the Light Bridade" penned by Alfred, Lord Tennyson in 1864. In his five stanza masterpiece, Tennyson artfully memorializes the suicidal charge by six hundred horsemen of the British light cavalry during the Battle of Balaclava (now Ukraine) in 1854. The war between the Royal Crown and the Russian Czars over control of sea routes is home to perhaps one of the most spectacular defeats in modern warfare. A defeat that makes Custer's last stand look like a Boy Scout weenie roast.

The invading British cavalry suffered near obliteration at the hands of the Slavic, Cossack, and Russian warriors. How could the Royal Cavalry fall before these ruffians? The answer is simple, the 600 British cavalrymen were not sufficiently "battle ready":

"Into the Valley of Death Rode the Six Hundred"

During my brief stint as General Counsel for a very small Silicon Valley "dot-com" on-line cookie mail-order business, I quickly realized that the modern litigator is truly not ready for battle. Like the light brigade, corporate counsel tend to work in a world that is responsive and reactionary as opposed to proactive and equipped. When the cookie company was confronted by an unexpected trademark challenge, we frantically tossed aside the boxes of chocolate chips and white macadamia nut swirls in a vain effort unearth our trademark registration records so that we could timely respond to a discovery request. ("Tossing your cookies" quickly took on a whole new meaning for us). Needless to say, we were always on the run during that litigation. We could never seem to stay on top of the discovery cut-offs. Always catching our breath, we were needlessly reviewing and re-reviewing the same materials and we spent more time trying to locate and synthesize the evidence than we did trying to organize and protect it. In sum, I could sort of sympathize with the British cavalry facing the Russian cannons. The other side had us on the run and, unlike our top selling product - walnut almond chunk, the litigation turned out to be anything but sweet.

"Cannon to the right of them
Cannon to the left of them
Cannon in front of them
Volley'd and thunder'd
Storm'd at with shot and shell,
Boldly they rode and well,
Into the Jaws of Death,
Into the mouth of Hell,
Rode the six hundred.

I recently was privileged to take part in a litigation readiness survey conducted by Fios, Inc. Through that survey, I had the unique opportunity to speak to the General Counsel's of large United States corporations - banks, financial powerhouses, pharmaceutical behemoths, technology giants and the like. The corporate counsel's tales which I heard over and over did not seem to vary greatly from that of Tennyson describing "the six hundred." These giants were sorely unprepared to respond efficiently and quickly to a law suit.

"Stormed at with shot and shell
While horse and hero fell,
They that had fough so well,
Come thro' the jaws of death,
Back from the mouth of Hell,
All that was left of them,
Left of six hundred."

The British cavalry rode into Balaclava as they had ridden into hundreds of battles before. They had not bothered to update their armor or change their battle strategies to account for the advent of the mobile land cannon. The British cavalry did not evolve their war strategy to counter new technologies and one day their antiquated system just plain didn't work any longer - and the British paid the ultimate price for their stubborn resistance to proactive change. No one in the cavalry had questioned this backwards thinking (non) strategy. Similarly, corporate counsel don't seem to question their company's antiquated (non) response policies when that first summons or subpoena hits them like a bolt of lightning. It is time that corporate counsel take a long, hard look at their level of litigation readiness.

Their's not to make reply,
Their's not to reason why,
Their's but to do and die:
Into the valley of Death
Rode the six hundred.

So what is corporate counsel to do to avoid steering her client into the proverbial "valley of death?" The following six "action inquiries" are a good start. They should be quickly incorporated into the company's near term agenda:

1. Have you surveyed your current litigation response policy (if you indeed have one)?
a. Is it in compliance with the rules of court/evidence in your jurisdiction?
b. Is it streamlined enough to meet discovery deadlines?
c. Does it incorporate the latest litigation support technologies such as knowledge management systems and electronic evidence discovery?
d. Does the discoverable litigation data "flow" into a format that can be readily culled, reviewed, protected for privilege and categorized?
e. Are key staff and outside counsel familiar with the policy? Is the policy preserved in a manual or other vehicle that can be used to educate new inside and outside counsel?

2. Are your data systems scalable and "open ended"?
a. Can your internal data systems handle a large case and then handle a case fifty times the size of that "large" case?
b. Does your data systems "share" information with your litigation tools such as Sanction, Summation, Prevail, CaseMap or Concordance?

3. Are you keeping up with the Jones'?
a. Does your system "fit" into the flow of requests for evidence that your company may receive from opposing counsel?
b. Can your system respond to requests as fast or faster than the requests come in?
c. Can your system handle data in new formats such ad .pst or .edii or .pdf?
d. Do you feel that you are riding into a valley with "cannons in front of you, to the side of you and behind you?"

4. Are you winning?
a. Is your current litigation response strategy delivering the results you want or is leading you into the "Valley of Death"?
b. Does the cost of maintaining your successful strategy lower than the costs associated with the headaches of a failed strategy and the pains of not obtaining your desired results?
c. Does your strategy allow for the avoidance of redundant tasks (such as reviewing and categorizing the same information over and over again or repeatedly searching for the same documentation)?

5. What does your outside counsel think?
a. Does your outside counsel utilize a similar litigation response strategy? (If so, can it interface with your strategy?)
b. Can outside counsel make sense of your strategy and "drive" it as well as your corporate counsel?
c. Is your streamlined strategy helping your corporation reduce its outside counsel attorney's fees?

And finally,

6. Do you have help?
a. Do you have a reputable consultant or EDD vendor supporting and advising you as to how to maintain the best litigation response strategy tailored to your corporation's specific needs?
b. Do you trust your consultants and strategists?
c. Do they come highly recommended?
d. Are they "conflicted" (ie, are they also consulting to opposing counsel)?
e. Do they stay on top of evolving technologies?
f. Do they stay on top of evolving rules and authorities pertaining to evidence and civil procedure?

I can attest that if the dot com cookie company had implemented a streamlined litigation readiness policy, we would have realized much more success when faced with that menacing trademark litigation. Similarly, if the British light brigade took the time to tweak and reinvent their outmoded strategy, they may be sipping tea today instead of vodka along the banks of Ukraine's Dnieper river.

Forward the Light Brigade!
"Charge for the guns!" he said:
Into the valley of Death
Rode the six hundred.



Alexander H. Lubarsky, LL.M., Esq. is an attorney, legal technology consultant, member of the LPMT Executive Committeee, Consultant with Fios, Certified Trainer with Summation, CaseMap and Concordance and Instructor of Legal Technology at San Francisco State University.



posted by Alexander | 11:55 PM

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