Editor: Please tell us about your professional background.
Gottehrer: As a litigation partner at Axinn Veltrop & Harkrider, I split my time between the firm’s New York office and its Connecticut office. My practice focuses on class action defense and management-side labor and employment matters, as well as other commercial litigation. I’m a member of The Sedona Conference, Working Group 1 and the drafting team updating The Sedona Conference Commentary on Legal Holds.
After graduating from the University of Pennsylvania Law School, I clerked for the Honorable Murray C. Goldman in Philadelphia, which was an invaluable experience. To this day, I follow a piece of advice the judge gave me when I began clerking: When you take a case, at the outset, you should ask yourself, “How am I going to open to the jury?” Even though very few cases go to trial in civil litigation, it’s extremely important to be clear about your goal from the beginning. In litigation there’s a tendency to get bogged down in minutiae, especially in discovery. It’s critical to resist that and focus on which witnesses and which documents will help you win your case – whether “win” means getting a good settlement, defeating class certification or getting a favorable verdict at trial.
After clerking, I practiced plaintiff’s side class action law until joining LeBoeuf, Lamb, Greene & MacRae, where I shifted to representing defendants in class actions. Around 10 years later, I joined Axinn, where I’ve been for five years.
Editor: When preparing for a Rule 26 meet-and-confer, who should be at the table and why?
Gottehrer: As many people with relevant knowledge as possible. That may sound like an expensive proposition, but having as many stakeholders as possible involved at the beginning is a good investment. Through collective thinking and generation of ideas, you increase the likelihood that you’re focusing on the right witnesses and the right data. This enables you to become more efficient as you progress through the case and reduces the chances that you’ll miss something important and have to go back or reassess your strategy.
A key person at the table is the in-house counsel who’s handling the case. That person is your guide to the company – she knows who the key players are; what kind of data there is; what the legal issues are; what the company’s perspective is; and what other particular concerns the company has.
You also want to include IT personnel who are knowledgeable about the company’s data. Increasingly we are seeing Rule 30(b)(6) depositions of IT people and motions relating to litigation holds and other issues involving IT. I’m very comfortable with e-discovery and technology, so the IT person is always one of the first people I want to speak with. Often, lawyers who aren’t familiar with technology are uncomfortable talking with IT people. Lawyers who can combine litigation skills with knowledge of technology will provide value to their clients by being able to develop a litigation strategy and defensible data plan for the case at an early stage.
It’s critical to know who the custodians are; the location of the data and servers; how they are maintained; whether there are legacy systems and data from acquisitions of other companies; and what challenges are associated with them. There are always problems with data – and there are always good explanations for those problems. The sooner you know them and can plan for them, the better off you are. You don’t want surprises.
Rule 26 conferences can be helpful in these circumstances. They can be opportunities to raise issues relating to data that is inaccessible or will be overly burdensome to search or produce. Once you work with your client to understand these issues, you can inform your adversary of them at the Rule 26 conference and try to reach agreement on them right away and, if you can’t, you can bring them to the judge’s attention at the Rule 16 conference. These issues aren’t going to go away, and you don’t want the judge asking you later, when a motion to compel or for protective order is filed, why this wasn’t brought to her attention earlier. It’s important to understand the IT challenges because they’re a large, and expensive, part of every case.
You also want records managers at the table. They can identify and locate paper documents; they know how the company has organized things historically and who the key custodians within the company are. They can speak to the company’s document retention policy and explain why a certain document may not have been retained. It’s also helpful to have company employees who are familiar with the underlying facts and issues in the case involved from the start, again to help you focus on what’s relevant.
One of the benefits of having all these people at the table is that they each have a slightly different perspective. When you get them together and explain the case and your defense theories to them, as well as the plaintiff’s theories of the case, someone invariably asks a question or makes a suggestion or points out something that helps advance your strategy and refine your approach to the case. It’s likely to be something that you wouldn’t have known to ask about. The team might identify people who are not obvious custodians or sources of information and who turn out to be tremendously helpful in building your case. The goal is to cut through the irrelevant facts and allegations and to focus on the facts and arguments that get you the result you need.
Editor: Have you been able to pull this off with clients in the past?
Gottehrer: Yes. Each company and each case is different, but clients see the value in getting the stakeholders involved early. Companies, and in-house counsel, are under pressure to control costs, including the cost of outside counsel and litigation. Taking all these stakeholders away from their work for these meetings is expensive, but when they see how much is accomplished during these meetings, it confirms that it’s a worthwhile investment.
You don’t want to be halfway into a case and learn about a witness or document for the first time. If you don’t know someone is relevant until later on in the case, you may not have preserved her data. While avoiding sanctions is a concern, it’s equally if not more important to make sure that you identify and preserve the documents that prove your case or your defense. There’s a tendency to lose sight of that.
The explosion of email and data has increased the cost and complexity of discovery, but hopefully the proposed amendments to the FRCP will help re-focus the scope of discovery onto the facts that are relevant to the claims and defenses in the case and on then deciding what’s proportional and should be produced. We need to find a balance. If only a few hundred thousand dollars are at issue in a case, should a litigant be required to search every email? Cost-shifting can help with this - where the court shifts to the requesting party the costs of producing certain burdensome and questionably necessary discovery it has requested. In the class actions and other cases I handle, discovery is asymmetrical; the defendant typically has much more data than the plaintiff and is facing significantly more burden and costs. Cost-shifting helps level the playing field a little.
Editor: How can the discovery process be streamlined? Can standardized processes and workflows, like those offered by Kiersted, be created for a corporation with multiple or streams of matters?
Gottehrer: There’s no one-size-fits-all solution; each company does things differently. Nonetheless, if a company has groups of cases – for example FLSA cases or consumer class actions, or cases that involve the same business unit –workflows and procedures can be standardized so that less “eyes-on” time is required.
Early case assessment tools are also useful and cost-effective. When you acquire data, rather than reviewing each document, you can utilize these tools to analyze that data. They can show the relationships between key players and give you a big picture view of your data. They can confirm, or contradict, what you might think about the case. If somebody tells you, “I never spoke to that person,” and then you see a trail of emails between them, you can follow up on that. You can also search key terms you might want to know about quickly. These tools, combined with witness interviews, help you assess your case early on. Technologies that help you prioritize your data and focus on what you’re looking for are extremely valuable, especially in cases like putative class actions where you want to evaluate the strength of the arguments against class certification and the strength of the defenses in the case as soon as possible. These tools enable you to zero in on data that confirms that there are individual issues among the putative class members that could defeat a predominance argument and prevent class certification. You may find data that reveals risks in your case, which could lead you to decide to explore settlement before spending money on discovery. The analysis of the data can give you options and reduce costs over the life of the case.
Editor: Would standardization, using tools like Kiersted’s Webspecs and Production Master, help when creating and managing specifications for processing and production?
Gottehrer: Yes. Many courts have rules regarding how data must be produced. Certain courts require data to be produced with specific metadata fields. You can tailor your data production process to the requirements of each court and ensure that the appropriate metadata is included in each production for each case in that court.
Editor: Can a meet-and-confer team be developed into a learning group that builds intel for the client as it handles more matters?
Gottehrer: Absolutely. Nobody knows more about companies than the people who work there. When litigation hits, their combined knowledge is an important resource. The team can regroup periodically during the case, learn about developments in the case and brainstorm about strategy. That interaction and collaboration yields positive results. The participants are likely to spot issues and bring them to your attention; they can give you feedback, or suggest ways that processes might be improved.
Editor: The collaborative process you describe seems to have applications far beyond the litigation itself.
Gottehrer: It does. Getting these teams in place and interacting can be helpful to the company even when it isn’t in litigation. Then, when litigation is filed, these resources are already in place, and people are more comfortable assisting outside counsel because it’s not the first time they’re dealing with litigation. This will increase efficiency and reduce costs over time. Working with outside counsel as a team and being involved in the litigation process gives people a certain comfort level and an understanding of the system. At the end of the day, the more information everyone has – all the in-house stakeholders and outside counsel – the better.