Civil Justice Reform - Corporate Counsel Helping Corporate Counsels' Voices To Be Heard On Federal E-Discovery Rules

Tuesday, February 1, 2005 - 01:00

The Editor interviews Susan Hackett, General Counsel, Association of Corporate Counsel (ACC).

Editor: ACC is globally recognized as the voice of corporate counsel. How does ACC focus its advocacy efforts on matters of most concern to corporate counsel?

Hackett: ACC is fortunate: we have a tremendously committed group of leaders who have a strong and meaningful vision for the future of the profession and are committed to helping ACC develop public policy positions that ensure that the voice of the in-house bar is registered and heard.

First, there's the Advocacy Committee of our board, which is ably led by Laura Stein, the new General Counsel of Clorox (until recently, she was the CLO at HJ Heinz). Our board committee not only vets the issues of concern raised by members, but also works with staff to predict emerging issues where our attention is most needed, and then develop policies that are recommended to our full Board for endorsement and the staff for action.

When a particular issue is identified, experts from ACC's substantive committees are crucial. For example, members of ACC's Litigation Committee are contributing their views on the federal e-discovery rules we're currently focused on. We include the input of local chapter leaders on issues that particularly affect geographic regions, such as local multijuridisdictional practice (MJP) reforms or confidentiality rules at the state level. And our board members themselves hale from a diverse range of companies, geographic locations, and practice specialties. In this way, we hope that our positions substantially reflect the thoughts and directions of our 17,500 members.

Given our limited resources, we try to avoid taking positions on issues that are well covered by other organizations or that might create schisms of interest amongst members. Our general focus is on issues of professional concern to the in-house bar: protection of the attorney-client privilege in the corporate context, in-house ethics and attorney conduct, MJP reforms and some civil justice reform initiatives. After all, we are a bar association and not an industry trade group for our members' clients.

Editor: What are some of the concerns you've heard corporate counsel voice about the current federal rules governing e-discovery?

Hackett: Rules drafted for handling discovery in the paper world of the last century cannot adequately guide litigants or courts in the electronic world of 2005. I've heard more members comment about their frustration with e-discovery (and the attendant problems of records retention and destruction that e-discovery uncertainty causes), than I've heard about most any other issue in my 16-year tenure at ACC. The current system is inconsistent and lacks predictability or fairness. Especially of concern is the sense that constant advances in recovery or retrievable capabilities leave parties unsure of how to proceed. This is just one of several issues coming out of the line of cases interpreting e-discovery responsibilities on a day-by-day, case-by-case basis. All you have to do is read the long line of decisions in the Zubalake cases to understand why folks who are expert in this area are pulling their hair out.

Editor: How is ACC helping corporate counsel's voices to be heard on the proposed amendments to the federal rules governing e-discovery?

Hackett: Our services to ACC members have a strong educational component. In the January 2005 issue of ACC Docket, Judge Shira A. Scheidlin spoke on the proposed federal rule changes in an interview with Kathleen M. Massey, vice president-litigation at Motorola, Inc., and Laura E. Ellsworth, partner-in-charge of the Pittsburgh office of Jones Day. As well as being in the hardcopy of the magazine, the article is available to ACC members online at http://www.acca.com/protected/pubs/docket/jan05/ediscovery.pdf. The article also suggests ten tips for surviving e-discovery without sanctions.

We are also working to make sure that members know that they can comment directly to the federal courts' committee studying the rules and their potential revision, and we're encouraging them to do so. The same federal courts' website (http://www.uscourts.gov/rules/index .html) houses comments already submitted by corporations, plaintiff's organizations and other bars. ACC's comments are planned for submission in early February, so anyone who wants to see those can come to the ACC homepage (www .acca.com) and check them out.

There's also programming at the chapter and national level for interested members. We just completed a webcast on February 1 featuring Cricket Technologies' Whitney Adams, and we're planning another the end of February featuring Tom Allman and Ashish Prasad of Mayer Brown, who are the top two experts on e-discovery issues in the corporate sector in the country (for my money!); they have been invaluable advisors to ACC as we've been working to develop our position.

We hope to develop additional written and web resources that will help our members navigate this tricky issue, at the same time that we advocate for common sense changes in the rules and before the courts. If anyone's interested in talking with me further about this, or other civil justice reform issues, they are welcome to contact me at (202) 293-4103, ext. 318 or hackett@acca.com.