FALL 2018 TODAY’S GENER AL COUNSEL
E-Discovery
Best Practices When the Corporate Client is Deposed By Matthew Keenan
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y any objective metric, the jury trial is going the way of the dodo bird as the frequency of trials diminishes in state and federal courts. In contrast, suit filings, client advertisements and associated litigation expenses are rapidly escalating. The popularity of the deposition remains unabated. According to Golkow Global Litigation, in the multidistrict litigation (MDL) hormone therapy litigation, for instance, the parties took over 3,600 depositions. In the Vioxx MDL, the total exceeded 600. Although many were plaintiffs and treating doctors, a significant percentage were corporate witnesses; and some of those depositions continued for multiple days. The Merck CEO, for example, was deposed over four days. With more recent MDLs, these numbers are only growing. E-discovery has increased both the demand and importance of corporate witness testimony. “A company witness in a management role will have 80 percent of their entire document collection consist of email and attachments,” says e-discovery attorney Denise Talbert. “After culling, application of keywords, technology assistance and responsiveness review, a general rule of thumb would be for the witness preparation team to expect to analyze between 15,000 and 20,000 produced emails and attachments per custodian.” Those at the receiving end of this new wave of discovery — institutional clients and their employees — can benefit from a consistent, cohesive approach to getting prepared and offering testimony. In my 30 years of practice, I have refined a methodology that I employ with each witness, regardless of his or her expertise or underlying liability themes. This continued on page 24