Big Changes in Subtle Ways: More Litigation Management Duties for In-house Counsel and New Roles for Law Firms

The new Federal Rules of Civil Procedure impose numerous duties on in-house counsel and require law firms to start rethinking how they market to and serve corporate clients. These changes are slowly going to have a dramatic impact on the allocation of litigation management duties.

There are several reasons why inside counsel have more burdens and need to change their practices: (1) events that trigger duties to preserve evidence occur well before outside counsel gets involved, (2) understanding IT infrastructures, rationalizing discovery processes, and implementing effective records management compliance are now generally viewed as a law department responsibilities in discharging duties to preserve, (3) inside litigation counsel cannot develop these needed systems and processes without a manager(s) with cross-functional expertise, and (4) companies will waive attorney-client privileges unless they take “reasonable precautions” to segregate privileged communications from general email traffic (as per proposed new Federal Rule of Evidence 502(b)).

Law firms should position themselves for and anticipate more litigation assignments with fewer clients, as corporations are looking for outside lawyers understand and become expert in their particular discovery and IT processes. Outside counsel, likewise, should be careful when accepting complex litigation assignments from new clients, as Rule 26(g) of the Federal Rules of Civil Procedure and other certification requirements could result in liability and sanctions for law firms who sign-off on discovery without knowing the full picture of the new client’s systems and controls. Lastly, and most dramatically, law firms might see revenues from billable hours for attorney review of documents for discovery go down as new search technologies are starting to supplant manual processes for culling through massive volumes of electronically stored information for privilege and relevance.



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