DRI is hosting today and tomorrow a Corporate Counsel Roundtable here in New York City. Corporate Counsel from around the country are hearing a great CLE program aimed at the most important concerns that Corporations and their legal departments face. One of the most interesting presentations so far is a panel discussion presenting on the issue of corporate conduct in litigation. A lawyer involved in prosecuting corporate misconduct stated his advice to corporations quite succinctly: Its all about attitude and knowledge. When being investigated, “don’t show up with the attitude that the investigator is stupid about corporate ways and doesn’t understand the industry that he is investigating.” “Leave that attitude at the door.” Another panelist told the story of the famous Zubulake case, an employment discrimination case which produced a $29 million verdict including $20 Million in punitives. It also produced a raft of opinions on e-discovery which are now legend. What is the lesson from that case? It is a plaintiff lawyer’s worst E-discovery problem if a corporation appears to be reasonable in its response to e-discovery requests. If a corporation is arrogant, obstinate and refuses to produce anything and tells the plaintiff “get a court order” – the plaintiff’s lawyer is confident of assistance from the court. If the defendant corporation appears reasonable, and agrees to reasonable appearing parameters to govern the production, it will make it tough for the plaintiff’s lawyer to appeal to the court for more. Again, the appearance of cover up here is worse than the crime. Corporations still struggle with e-discovery issues and many don’t have a good e-discovery plan for litigation (and pre-litigation conduct relating to document retention and retrieval). Corporations should consult with e-discovery lawyer experts to establish such a plan which will greatly assist them in litigation or corporate investigations.
