Corporate Counsel: Communications Tech Poses ‘Nightmarish Possibilities’ for E-Discovery

Originally Published in Corporate Counsel | August 26, 2016 | By Sue Reisinger

One of the most challenging discovery issues for in-house counsel is struggling to keep up with fast-changing communications technology, according to Charna Gerstenhaber, head of litigation at Novartis Pharmaceuticals Corp.

New tools create more avenues for people to communicate, carrying information that Gerstenhaber says may need to be preserved and produced for litigation.

“So when they roll out a new way of texting or instant messaging or an internal social media tool that sounds like a great idea from a collaboration standpoint, to a litigator they present nightmarish possibilities,” she tells Corporate Counsel.

Gerstenhaber is one of several litigation chiefs set to speak, along with general counsel, on Sept. 15 in New York at a Consero Group forum called Corporate Litigation Executive Roundtable. Gerstenhaber’s panel will assess e-discovery management issues.

Another worrisome area, Gerstenhaber says, relates to offshoring or outsourcing data. “There’s always more concern about a risk of loss when things move,” she says.

With a global corporation such as Novartis, she says conflicting privacy laws in different countries “can get in the way of preserving or collecting e-data.”

She adds, “And if an outside vendor is retaining data, there’s the need to ensure that the contract appropriately provides for the possibility that it may need to be preserved and selected for litigation. Outside the U.S., people are much less attuned to litigation needs.”

Gerstenhaber says the Novartis legal department differs from others in that most of the team members have a number of different responsibilities. There’s no one, savvy tech person on the legal team who deals with IT, for instance. Years ago the legal department brought in a team of consultants from Huron Legal to both handle the day-to-day discovery program and work on long-term strategy. “We’ve been told our discovery program is advanced and very strong,” Gerstenhaber says.

Daniel Connolly, co-chairman of the roundtable and moderator for a panel on internal investigations, will also speak at the forum. Connolly is managing partner of the New York office of Bracewell.

Connolly says he sees three main trends in corporate litigation:

• The amount of litigation is down over the past five years. “That’s not necessarily a bad thing. It means that everybody is becoming more sophisticated and more willing to discuss options short of litigation,” he says.

• Alternative fee arrangements are growing. “There’s this whole notion of aligning the interests of outside counsel with the people they represent,” he says. “The increased focus on ways of providing cost certainty has provided some alternatives.”

• Regulatory enforcement is more aggressive than ever. “The appetite for internal [company] investigations has never been greater,” he says. “It’s one of the fastest developing areas of law.”