Planning is the Key to Avoiding E-Discovery Nightmares
There are several common problems associated with e-discovery—inadvertent production of privileged or sensitive documents, failure to produce responsive documents, turning harmful or “smoking gun” documents over to an adversary without knowing it, and last, but not certainly not least, runaway costs.
In many circumstances, the foundation for an e-discovery nightmare is established before a single document is reviewed. While it might not be possible to eliminate all the risk that comes with e-discovery, the danger can be significantly mitigated by a carefully crafted e-discovery plan.
An e-discovery plan can range from an email outlining the e-discovery process for smaller cases to a comprehensive document detailing the scope and process for e-discovery in a large complex case. Parties should draft and distribute an e-discovery plan at the onset of every case.
Frankly, if you find yourself drafting an e-discovery plan after a discovery request has been served, you are already too late.
Regardless of the size of a matter, there are several key components to all e-discovery plans: first, retention and collection of potentially relevant material; second, review for responsiveness and privilege; and finally, production.
Identify & Collect
The first part of an e-discovery plan relates to the identification and retention of potentially relevant materials.
In this section, the drafters will list the employees, departments, and offices that might have relevant information, including where any such information is housed. A plan should include a memorandum to send to employees advising them to refrain from deleting or destroying any potentially relevant documents. It also ought to detail the steps the organization will take to retain electronic information, such as copying hard-drives and suspending the planned destruction of back-up materials.
Here, a decision will have to be made as to whether to have internal information technology professionals handle the preservation process or to bring in an outside computer forensic team to handle the project.
In today’s increasing digital world, it is important to consider all of the places relevant electronically stored information may be housed. Simply think about all of the devices a single employee may have in his or her possession. In addition to organizational email accounts, hard drives on employees’ computers, and shared server space, relevant information may also be kept on smartphones, flash drives, personal email accounts, and personal computers.
It is also necessary to think about the types of data and files that might be important. For example, are the potentially relevant materials just email and Microsoft Office files or do complex transactional databases have to be considered as well?
The second phase of an e-discovery plan sets the groundwork for the review process. In this section, the drafters of an e-discovery plan should identify the platform on which potentially responsive materials will be reviewed. This is one of the most important decisions that needs to be made for each e-discovery project. In fact, the cost of the selected e-discovery tool often represents the second largest cost in a litigation, behind only attorneys’ fees.
While many law firms now have software in-house that can handle small-scale reviews, virtually all larger cases will require the retention of an outside vendor with an e-discovery tool to assist with the review of electronically stored information. These tools range from simple programs that organize documents and allow a reviewer to click a few buttons such as “responsive,” “non-responsive”, or “privileged” to programs that, quite literally, do the review themselves after being “trained” by an attorney through a process known as predictive coding.
Predictive coding has gained a significant foot-hold in the e-discovery realm over the past two years. Indeed, several courts around the country recently endorsed the use of this new technology, which can cut the time needed for document review projects by more than two-thirds. Identifying the features that are needed for a particular e-discovery project will help prevent selecting—and paying for—unnecessary options.
Particularly in larger cases, a memorandum detailing the specifics of a case ought to be included in the review section of an e-discovery plan. This portion of the plan will likely need to be edited once formal document requests are received.
The purpose of the review memorandum is to highlight the important issues in a case and reviewers should be instructed to mark any documents relevant to those issues. Another important feature of the review memorandum is a list of both in-house and outside counsel that work with the organization to assist reviewers in identifying privileged documents. Furthermore, it is often useful to identify particularly sensitive documents that are not relevant to the instant case.
This will ensure that reviewers pay special attention to any such documents reducing the probability that they will slip through the cracks leading to an inadvertent production.
The final section of an e-discovery plan should identify the preferable form of production. Including this information in a plan—particularly at an early stage of a litigation—allows counsel to get an adversary’s and/or the court’s approval for producing in the favored form early in a case when opposing counsel are generally much more agreeable to discovery proposals. If counsel is able to establish a familiar method of production as the “standard” for a case, it decreases costs and, again, minimizes the risk of errors.
E-discovery plans will differ based on the needs of particular cases and the preferences of counsel and litigants. There is, however, one overriding principle that holds true in respect of e-discovery in all cases—even a little planning goes a long way.