This was a great thread. Am inspired to give an overview of one of my favorite aspects of general litigation - the e-discovery process. I'm a midlevel associate at a large NYC-centric biglaw firm.
E-Discovery Through The Joy Of Third-Party Subpoenas!
It's really difficult to break down exactly what a general litigator does at the junior or midlevel ranks because it is so varied. I might get staffed on some massive worldwide internal investigation that involves heavy document review and interview prep. Might also be some relatively low-value (tens of millions) commercial litigation dispute with limited document production where I will be writing the first drafts of briefs with limited partner involvement. I would say my work breaks down 40% discovery, 40% writing, and 20% management and other kinds of admin tasks. But since e-discovery is such a huge part of general lit practice I thought I would give readers an insight into it through the lens of a pretty simple discovery matter - the third-party subpoena.
Any NYC biglaw firm is going to have a fair number of banking, funds, or insurance clients that receive a lot of third-party subpoenas to produce documents. These usually relate to companies or individuals they are doing business with. What happens is that an in-house lawyer or some business person at the client will get a subpoena requiring them to produce documents within 20 or 30 days. This subpoena will be drafted to request every single document even tangentially relevant to the any issue in the litigation. If it's a business person they will usually have some idea of the subject-matter. They give it to in-house counsel, who will determine if it is the sort of thing that can be handled in-house. Larger clients will handle these in-house unless it's a subpoena from a government agency, like the SEC or DOJ, or it's part of some massive litigation and will clearly require heavy lifting. If the client is a small shop with an in-house team composed mostly of former corporate associates, they will usually farm out even simpler subpoenas to outside counsel.
In-house counsel has two immediate questions for the partner: (1) are we somehow going to get dragged into whatever litigation/investigation this is as a party, and (2) how much is getting rid of this going to cost. The answer to the second question may depend on the answer to the first, but if the answer to the first is yes, then the client has bigger things to worry about than just costs.
Depending on the partner involved and the nature of the subpoena, you might be anywhere from a first-year to a more senior associate. The partner will shoot you an email with the subpoena and some news article or email from the client that describes the background in vague terms and will ask you to find out everything you possibly can about the subject-matter of the case, procedural posture, and any topics addressed in the subpoena. This in preparation for a call that is almost always pre-scheduled for a couple hours from when you get the email. You figure this out by dropping whatever you are doing and frantically Googling and checking the case docket on PACER. At this point, the procedural posture of the case is the most important thing because it will determine how aggressive the other side will be, how willing they are to go to the judge if you don't start turning over documents like now, and therefore how many hours you will have to work over the next few weeks.
You will then have a call with the client’s in-house lawyer, where the partner will tell the in-house lawyer what is going on and based on their experience how much room they have to negotiate the subpoena away or severely limit it. Unsophisticated clients who see SUBPOENA and get scared are usually relieved at this point, but it is standard practice to draft these things as sort of an "opening offer" to leave room to negotiate the requests down.
You will then have a 30 minute to an hour call with the relevant personnel at the client who were involved with whatever event or person triggered the subpoena. You can sense that this person utterly despises you as they (correctly) surmise that you are going to be bothering them a lot and that they will have to do a lot of unnecessary document collection and (mostly incorrectly) suspect that they may have done something wrong. You will ask them about their substantive knowledge of the topics in the subpoena as well as where/how they store relevant documents. You do not tell them that depending on their level of involvement with the matter, they might be subpoenaed to testify at a deposition, since that is going to make them "forget" stuff that it will become quickly apparent that they probably remember, and will make it that much harder for you as the associate to get a handle on the facts. Depending on your seniority and the partner’s personal whims you may handle this call entirely by yourself, ask only about the technical aspects (we will get to those in a second) or you may say nothing.
Ideally, you learn that the opposing side was mistaken about your client's level of involvement and that you really have no documents or information to provide them, or that the client has a limited number of documents stored in a single folder on their computer that they can put on a flash drive and messenger over to you. If you are unlucky, this will be some bankruptcy case or Delaware merger litigation with a hard deadline, 40 individual requests for production, and your client was deeply involved with one of the parties and probably has thousands of documents that are necessary to the resolution of the matter and this is obvious to everyone involved, including the Court. (If it's a government subpoena, things get simpler - you generally be as cooperative as possible assuming your client is not potentially a target of any investigation).
Once you have a handle on whether you have responsive documents, the next call is to the opposing side. In a typical litigation, you can usually get a several week or month extension to submit what are called “responses and objections” where you go through every request and state whether you will produce documents and if so, what your limitations are. For example, you might state you won't produce documents to the extent that they are irrelevant to the issues in the case, doing so would be burdensome, privileged, confidential/personal, etc. etc. You will spend a lot of time drafting these to perfection, making sure all defined terms are correct, every paragraph is properly spaced and indented, etc. etc. Nobody will ever read these. If someone designed an app to auto-generate them they would make millions.
You then will engage in a series of calls with the other side, called a meet and confer, that can drag on for weeks or months. If a government subpoena these will be more like update calls, as you are going to turn over everything anyway and the question is just how quickly they need it. But if producing to a private party, you will offer to turn over everything you have immediately at hand that is obviously relevant to the subpoena and nothing else. Their objective will be to get you to run a series of broad search terms through your client's email servers or hard drives, for as many custodians and as wide a date range as possible, in order to pull back every document that could possibly be called for by their subpoena (which will inevitably include many times more completely irrelevant/non-responsive documents than relevant/responsive ones.)
If you're a senior associate you can do these on your own, usually with another senior associate on the other side. If you are more junior associate the partner will probably do them. The idea is to either reach an agreement about the scope of the searches you will conduct that is reasonable for your client and for which the other side thinks that they have gotten everything they need and that a motion to compel you to produce more documents would likely just piss off the judge, or to demonstrate, through a series of passive-aggressive emails that become more and more aggressive as time goes on, why what the other side is requesting is irrelevant, burdensome, privileged, etc. Nobody likes going to the judge - judges hate dealing with discovery bullshit but also will issue random decisions, so if you go to the judge and lose, suddenly you could be ordered to turn over a million documents or some crazy number that you would have no had to turn over if you'd been willing to work with the other side. Whatever the approach, you want to delay the end result for as long as possible in hopes the case will settle, which the client always appreciates because it saves review time and thus money.
At this point you will probably get your litigation support teams involved. These are attorneys or tech folks who know literally everything there is to know about documents, such as where and how documents are stored on computers and servers, how to get them, the best vendors for data storage and processing, how to design efficient review workflows using document review tools like Relativity, or the staffing agencies for temporary document help. Be really nice to these people all the time. As the associate, your job is to tell them the scope of the review and to run interference between them and the partners - although you know nothing about this stuff at first, you are paid the huge salary and have the JD and so you are on the hook if things get screwed up, not them.
The meet and confer process can go on for months, but eventually discovery is going to close in the case and the other side is going to start pushing you to produce, threatening to go to the judge to compel you to produce the documents by a certain date so they can use them at depositions and trial. Assuming you reach an agreement on the scope of the review, you then go back to the client and collect the documents - lit support will usually handle this with the client's IT dep't directly. The partner now drops off the face of the earth entirely, just in time for you to start running searches and pulling back tens or hundreds of thousands of results and the client's in-house lawyers and business people to start freaking the fuck right out, as every document might as well be a stack of money. Your job is to reassure them that the review will be done efficiently so that the partner does not have to get involved directly, while pushing back on their instinct to cut costs by doing something that will make your life more stressful and end up costing more in the end.
A common heart attack moment for a junior lit associate is to get that first search term hit report with some massive number of documents and to then realize you have to produce them in some absurdly short time like a couple of weeks, without disclosing anything that is not responsive or potentially privileged, and to do this without running up a million dollar bill which you assume will get written off at the same time you get shitcanned. This is whether your lit support people will save your ass. There are a bunch of ways to reduce the number of documents you need to actually read closely, deduping (removing exact duplicates), dethreading (reviewing only the top email in the thread and then applying coding automatically to other emails), batch coding, highlighting names of attorneys and common privilege terms, running exclusionary searches, reviewing domains and subject lines in an excel to weed out junk, etc, and you will turn those tens of thousands of documents into a manageable little bundle of a few hundred which you can review on a nice night over a couple of beers.
The partner has been checked out for a while now, but your job is to keep things moving with the review, get productions out, know the documents and your client's role in the case cold, and send them occasionally "hot" or interesting documents. All throughout this process you will be getting loaded up with work on other matters where your client is actually a party, and this matter will fall to the wayside. The associate on the other side will start sending you shitty emails every couple days demanding to know where you are with your productions, asking for a response by some arbitrary deadline, and generally challenging your competence (or even asking you to bring in another lawyer who has "more capacity to give attention to the matter"). They will usually cc your partner which will prompt a "where are we on this" or similar email. Although the first couple of times you get these emails you assume you've fucked up somewhere along the line because you won't meet their deadline, once you see this happen enough times you realize that the threats are largely empty. If they get mad enough you can drop a few hundred documents you know aren't privileged on them which should shut them up because they aren't going to waste time going to the court when you have clearly been attempting to comply.
There's a million things that we haven't touched on yet. Using contract attorneys for massive reviews would take a whole post as long as this one, for example.