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The Butterfly Effect: eDiscovery in Government Investigations and Why Small Tweaks May Have Great Impacts

Bloomberg BNA

Caitlin M. Kasmar

In the context of civil litigation, the rules governing eDiscovery may not be crystal clear (especially in light of the recent amendments to the Federal Rules), but at least there is ample guidance available.

Counsel can perform simple research and identify troves of articles addressing how to leverage the Rules—and other actual law—to position themselves in the best way possible to either obtain all the information they seek or prevent the other side from imposing massive burdens on their clients.

The world of government investigations is different. In this world, clients are motivated by one primary concern: to avoid being sued. In this world, the rules are not always clear.

Ostensibly, the Federal Rules apply (see F.R.C.P. 81(a)(5)), but neither party wants to go to court over a pre-suit discovery issue.

And often in this world of government investigations you are still engaging in a bend-over-backward effort to cooperate with what may be very burdensome requests, while at the same time strategizing how to limit the scope of the investigation.

In government investigations, the need to understand the universe of relevant information is even more pressing and urgent than in civil litigation; you may quickly find yourself backed into a corner, making representations about systems you do not fully understand.

Fortunately, a few tweaks to the process of responding to a subpoena can smooth the road ahead.

Negotiate, Negotiate, Negotiate

When a subpoena or civil investigative demand is issued by a government agency, chances are the issuing attorney is expecting the scope of the requests to be negotiated by company counsel.

In fact, we hear regularly from government attorneys that the requests were ‘‘drafted broadly’’ with full knowledge that the two sides will come to a reasonable agreement as to what should actually be produced in the course of meet-and-confer discussions.

This may seem an obvious point, but too many times we’ve been brought into active investigations where counsel handling the matter took the requests at facevalue and simply set about the work of collecting documents without engaging in a deep and substantive negotiation with the other side.

It cannot be stressed enough—do not assume that you need to produce everything the subpoena requests on its face.

Think hard about what the government might be looking for. Question your client carefully about what types of documents and information exist and whether there is a sensible way to be responsive to the request without turning over the earth.

Originally published in Bloomberg BNA; reprinted with permission.