Defense Counsel And Corporate Counsel – A Perfect Partnership On Key Policy Issues

Wednesday, April 25, 2012 - 12:34

Litigation costs continue to soar with the explosive growth of electronically stored information (ESI) attributable, among other things, to the proliferation of smart phones, electronic readers and social and other new media. By significantly increasing the cost of doing business in the U.S., this burden contributes to making the price of U.S. goods uncompetitive in world markets, while deterring foreign companies from moving here. Yet, these costs can be significantly reduced by clear rules governing e-discovery and the preservation of ESI.

Controlling litigation costs is the greatest concern of corporate counsel. Corporate counsel’s most important allies in bringing e-discovery costs under control are the defense counsel they use and the national defense counsel organizations.

This issue of The Metropolitan Corporate Counsel focuses on the great services these organizations perform. They have staunchly defended the interests of corporations whenever issues arise that needlessly increase the cost of litigation.

In this issue, we focus on the activities of DRI, “The Voice of the Defense Bar;” Federation of Defense & Corporate Counsel,“Defense Lawyers, Defense Leaders” (FDCC); and the International Association of Defense Counsel – “Think IADC First” (IADC).

DRI is an organization of 22,000 defense and corporate counsel. FDCC and IADC are smaller but very effective organizations with highly selective requirements for admission.

DRI recently established its Center for Law & Public Policy. This implements DRI’s commitment to become more deeply involved in the national debate on both legal and public policy issues in order better to serve its membership. By serving as a national voice for comment on important issues of the day, the Center will be the go-to source for the media in allowing for more balanced coverage.

Policies that address e-discovery and other litigation issues of concern to corporate counsel are adopted by Lawyers for Civil Justice (LCJ) – whose core membership consists of concerned corporations. LCJ is strongly supported by defense counsel organizations and defense counsel. DRI not only offers a platform through the Center to communicate these policies to the media but, together with IADC and FDCC, provides LCJ with a network of lawyers and local defense organizations from all over the country to assist in implementing LCJ’s policies – a good example is LCJ’s focus on getting clear guidelines governing ESI – both at the federal and state levels.

The federal rules governing e-discovery need clarification. Many states still do not have adequate rules. LCJ, DRI, IADC and FDCC are not only working together to achieve reforms not only in the Federal Rules of Civil Procedure but also in the states since the great majority of litigation occurs in state courts.

Defense counsel organizations are currently reaching out to their members and state and local defense counsel groups to find out whether a state has e-discovery rules, the nature of those rules and whether or not there is any movement in that state toward adopting or reforming e-discovery rules. Depending on the answers to those questions, LCJ will decide whether it should get involved.

FDCC is involved in this effort although it does not lobby in the traditional sense. However, it designates a representative in every state for the purpose of enabling it to react immediately to issues. Such action may involve testimony at the state level or letter-writing campaigns.

IADC has a legislative and judicial affairs committee which is specifically tasked with keeping up to date on federal and state developments, bringing  them to the attention of IADC members, commenting on them and, if necessary, formulating responses to them. In addition, it has state committees that carefully follow what is going on in their individual states. 

All three of the defense counsel organizations featured in this issue encourage the involvement of corporate counsel. If you want to assist in the efforts discussed above, you may wish to join one or all these organizations.

Any DRI member can take a non-member corporate counsel to a seminar one time as a guest, which can serve as a meaningful introduction to that organization. Corporate counsel who join DRI enjoy unlimited access to DRI seminars. Also, corporate counsel members of DRI automatically qualify to become members of its corporate counsel committee.

As to FDCC, its corporate counsel contingent is very strong. Its current secretary treasurer and FDCC’s next president-elect is Tim Pratt, Executive Vice President, Chief Administrative Officer, General Counsel and Secretary of Boston Scientific Corporation. Tim has been very active in the organization and is the first corporate counsel substantially involved in chairing various FDCC committees, clearly reflecting that FDCC is very open to and involved with corporate counsel members.

IADC also welcomes corporate counsel and has a number of distinguished in-house counsel occupying key positions in its organization and is committed to increasing its corporate in-house counsel membership. In keeping with this objective, it offers a new and very favorable dues structure for in-house counsel members.

Because of the key roles played by LCJ and the national defense counsel organizations in shaping policies that help assure that your corporate clients face a level litigation playing field and that e-discovery costs are brought under control, we urge you to investigate membership in the national defense counsel organizations and explore ways in which your corporation can contribute to the work of LCJ.

Our June issue will focus on the May meeting of LCJ.

Al Driver, Editor