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Electronic Discovery

eDiscovery Trends: eDiscovery Work is Growing in Law Firms and Corporations
 

There was an article in Law Technology News last Friday (Survey Shows Surge in E-Discovery Work at Law Firms and Corporations, written by Monica Bay) that discussed the findings of a survey released by The Cowen Group, indicating that eDiscovery work in law firms and corporations is growing considerably.  Eighty-eight law firm and corporate law department professionals responded to the survey.

Some of the key findings:

  • 70 percent of law firm respondents reported an increase in workload for their litigation support and eDiscovery departments (compared to 42 percent in the second quarter of 2009);
  • 77 percent of corporate law department respondents reported an increase in workload for their litigation support and eDiscovery departments;
  • 60 percent of respondents anticipate increasing their internal capabilities for eDiscovery;
  • 55 percent of corporate and 62 percent of firm respondents said they "anticipate outsourcing a significant amount of eDiscovery to third-party providers” (some organizations expect to both increase internal capabilities and outsource);
  • 50 percent of the firms believe they will increase technology speeding in the next three months (compared to 31 percent of firms in 2010);
  • 43 percent of firms plan to add people to their litigation support and eDiscovery staff in the next 3 months, compared to 32 percent in 2011;
  • Noting that “corporate legal departments are under increasing pressure to ‘do more with less in-house to keep external costs down’”, only 12 percent of corporate respondents anticipate increasing headcount and 30 percent will increase their technology spend in the next six months;
  • In the past year, 49 percent of law firms and 23 percent of corporations have used Technology Assisted Review/ Predictive Coding technology through a third party service provider – an additional 38 percent have considered using it;
  • As for TAR/Predictive Coding inhouse, 30 percent of firms have an inhouse tool, and an additional 35 percent are considering making the investment.

As managing partner David Cowen notes, “Cases such as Da Silva Moore, Kleen, and Global Aerospace, which have hit our collective consciousness in the past three months, affect the investments in technology that both law firms and corporations are making.”  He concludes the Executive Summary of the report with this advice: “Educate yourself on the latest evolving industry trends, invest in relationships, and be an active participant in helping your executives, your department, and your clients ‘do more with less’.”

So, what do you think?  Do any of those numbers and trends surprise you?  Please share any comments you might have or if you’d like to know more about a particular topic.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine Discovery. eDiscoveryDaily is made available by CloudNine Discovery solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscoveryDaily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

eDiscovery Trends: The Da Silva Moore Case Has Class (Certification, That Is)
 

As noted in an article written by Mark Hamblett in Law Technology News, Judge Andrew Carter of the U.S. District Court for the Southern District of New York has granted conditional class certification in the Da Silva Moore v. Publicis Groupe & MSL Group case.

In this case, women employees of the advertising conglomerate Publicis Groupe and its U.S. subsidiary, MSL, have accused their employer of company-wide discrimination, pregnancy discrimination, and a practice of keeping women at entry-level positions with few opportunities for promotion.

Judge Carter concluded that “Plaintiffs have met their burden by making a modest factual showing to demonstrate that they and potential plaintiffs together were victims of a common policy or plan that violated the law. They submit sufficient information that because of a common pay scale, they were paid wages lower than the wages paid to men for the performance of substantially equal work. The information also reveals that Plaintiffs had similar responsibilities as other professionals with the same title. Defendants may disagree with Plaintiffs' contentions, but the Court cannot hold Plaintiffs to a higher standard simply because it is an EPA action rather an action brought under the FLSA.”

“Courts have conditionally certified classes where the plaintiffs have different job functions,” Judge Carter noted, indicating that “[p]laintiffs have to make a mere showing that they are similarly situated to themselves and the potential opt-in members and Plaintiffs here have accomplished their goal.”

This is just the latest development in this test case for the use of computer-assisted coding to search electronic documents for responsive discovery. On February 24, Magistrate Judge Andrew J. Peck of the U.S. District Court for the Southern District of New York issued an opinion making it likely the first case to accept the use of computer-assisted review of electronically stored information (“ESI”) for this case.  However, on March 13, District Court Judge Andrew L. Carter, Jr. granted plaintiffs’ request to submit additional briefing on their February 22 objections to the ruling.  In that briefing (filed on March 26), the plaintiffs claimed that the protocol approved for predictive coding “risks failing to capture a staggering 65% of the relevant documents in this case” and questioned Judge Peck’s relationship with defense counsel and with the selected vendor for the case, Recommind.

Then, on April 5, Judge Peck issued an order in response to Plaintiffs’ letter requesting his recusal, directing plaintiffs to indicate whether they would file a formal motion for recusal or ask the Court to consider the letter as the motion.  On April 13, (Friday the 13th, that is), the plaintiffs did just that, by formally requesting the recusal of Judge Peck (the defendants issued a response in opposition on April 30).  But, on April 25, Judge Carter issued an opinion and order in the case, upholding Judge Peck’s opinion approving computer-assisted review.

Not done, the plaintiffs filed an objection on May 9 to Judge Peck's rejection of their request to stay discovery pending the resolution of outstanding motions and objections (including the recusal motion, which has yet to be ruled on.  Then, on May 14, Judge Peck issued a stay, stopping defendant MSLGroup's production of electronically stored information.  Finally, on June 15, Judge Peck, in a 56 page opinion and order, denied the plaintiffs’ motion for recusal. 

So, what do you think?  What will happen in this case next?  Please share any comments you might have or if you’d like to know more about a particular topic.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine Discovery. eDiscoveryDaily is made available by CloudNine Discovery solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscoveryDaily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

eDiscovery Best Practices: Types Of Metadata and How They Impact Discovery
 

If an electronic document is a “house” for information, then metadata could be considered the “deed” to that house. There is far more to explaining a house than simply the number of stories and the color of trim. It is the data that isn’t apparent to the naked eye that tells the rest of the story. For a house, the deed lines out the name of the buyer, the financier, and the closing date among heaps of other information that form the basis of the property. For an electronic document, it’s not just the content or formatting that holds the key to understanding it. Metadata, which is data about the document, contains information such as the user who created it, creation date, the edit history, and file type. Metadata often tells the rest of the story about the document and, therefore, is often a key focus of eDiscovery, such as in cases like this one we recently covered here.

There are many different types of metadata and it is important to understand each with regard to requesting that metadata in opposing counsel productions and being prepared to produce it in your own productions.  Examples include:

  • Application Metadata: This is the data created by an application, such as Microsoft® Word, that pertains to the ESI (“Electronically Stored Information”) being addressed. It is embedded in the file and moves with it when copied, though copying may alter the application metadata.
  • Document Metadata: These are properties about a document that may not be viewable within the application that created it, but can often be seen through a “Properties” view (for example, Word tracks the author name and total editing time).
  • Email Metadata: Data about the email.  Sometimes, this metadata may not be immediately apparent within the email application that created it (e.g., date and time received). The amount of email metadata available varies depending on the email system utilized.  For example, Outlook has a metadata field that links messages in a thread together which can facilitate review – not all email applications have this data.
  • Embedded Metadata: This metadata is usually hidden; however, it can be a vitally important part of the ESI. Examples of embedded metadata are edit history or notes in a presentation file. These may only be viewable in the original, native file since it is not always extracted during processing and conversion for eDiscovery.
  • File System Metadata: Data generated by the file system, such as Windows, to track key statistics about the file (e.g., name, size, location, etc.) which is usually stored externally from the file itself.
  • User-Added Metadata: Data created by a user while working with, reviewing, or copying a file (such as notes or tracked changes).
  • Vendor-Added Metadata: Data created and maintained by an eDiscovery vendor during processing of the native document.  Don’t be alarmed, it’s impossible to work with some file types without generating some metadata; for example, you can’t review and produce individual emails within a custodian’s Outlook PST file without generating those out as separate emails (either in Outlook MSG format or converted to an image format, such as TIFF or PDF).

Some metadata, such as user-added tracked changes or notes, could be work product that may affect whether a document is responsive or contains privileged information, so it’s important to consider that metadata during review, especially when producing in native format.

So, what do you think? Have you been involved in cases where metadata was specifically requested as part of discovery? Please share any comments you might have or if you’d like to know more about a particular topic.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine Discovery. eDiscoveryDaily is made available by CloudNine Discovery solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscoveryDaily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

eDiscovery Best Practices: You May Need to Collect from Custodians Who Aren’t There
 

A little over a week ago, we talked about how critical the first seven to ten days are in the case once litigation hits.  Key activities to get a jump on the case include creating a list of key employees most likely to have documents relevant to the litigation and interviewing those key employees, as well as key department representatives, such as IT for information about retention and destruction policies.  These steps are especially important as they may shed light on custodians you might not think about – the ones who aren’t there.

No, I’m not talking about the Coen brothers’ movie The Man Who Wasn’t There, starring Billy Bob Thornton, I’m talking about custodians who are no longer with the organization.

Let’s face it, when key employees depart an organization, many of those organizations have a policy in place to preserve their data for a period of time to ensure that any data in their possession that might be critical to company operations is still available if needed.  Preserving that data may occur in a number of ways, including:

  • Saving the employee’s hard drive, either by keeping the drive itself or by backing it up to some other media before wiping it for re-use;
  • Keeping any data in their network store (i.e., folder on the network dedicated to the employee’s files) by backing up that folder or even (in some cases) simply leaving it there for access if needed;
  • Storage and/or archival of eMail from the eMail system;
  • Retention of any portable media in the employee’s possession (including DVDs, portable hard drives, PDAs, cell phones, etc.).

As part of the early fact finding, it’s essential to determine the organization’s retention policy (and practices, especially if there’s no formal policy) for retaining data (such as the examples listed above) of departed employees.  You need to find out if the organization keeps that data, where they keep it, in what format, and for how long.

When interviewing key employees, one of the typical questions to ask is “Do you know of any other employees that may have responsive data to this litigation?”  The first several interviews with employees often identify other employees that need to be interviewed, so the interview list will often grow to locate potentially responsive electronically stored information (ESI).  It’s important to broaden that question to include employees that are no longer with the organization to identify any that also may have had responsive data and try to gather as much information about each departed employee as possible, including the department in which they worked, who their immediate supervisor was and how long they worked at the company.  Often, this information may need to be gathered from Human Resources.

Once you’ve determined which departed employees might have had responsive data and whether the organization may still be retaining any of that data, you can work with IT or whoever has possession of that data to preserve and collect it for litigation purposes.  Just because they aren’t there doesn’t mean they’re not important.

So, what do you think?  Does your approach for identifying and collecting from custodians include those who aren’t there?  Please share any comments you might have or if you’d like to know more about a particular topic.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine Discovery. eDiscoveryDaily is made available by CloudNine Discovery solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscoveryDaily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

eDiscovery Trends: First Pass Review – Domain Categorization of Your Opponent’s Data
 

Even those of us at eDiscoveryDaily have to take an occasional vacation; however, instead of “going dark” for the week, we thought we would republish a post series from the early days of the blog (when we didn’t have many readers yet)  So chances are, you haven’t seen these posts yet!  Enjoy!

Yesterday, we talked about the use of First Pass Review (FPR) applications (such as FirstPass®, powered by Venio FPR™) to not only conduct first pass review of your own collection, but also to analyze your opponent’s ESI production.  One way to analyze that data is through “fuzzy” searching to find misspellings or OCR errors in an opponent’s produced ESI.

Domain Categorization

Another type of analysis is the use of domain categorization.  Email is generally the biggest component of most ESI collections and each participant in an email communication belongs to a domain associated with the email server that manages their email.

FirstPass supports domain categorization by providing a list of domains associated with the ESI collection being reviewed, with a count for each domain that appears in emails in the collection.  Domain categorization provides several benefits when reviewing your opponent’s ESI:

  • Non-Responsive Produced ESI: Domains in the list that are obviously non-responsive to the case can be quickly identified and all messages associated with those domains can be “group-tagged” as non-responsive.  If a significant percentage of files are identified as non-responsive, that may be a sign that your opponent is trying to “bury you with paper” (albeit electronic).
  • Inadvertent Disclosures: If there are any emails associated with outside counsel’s domain, they could be inadvertent disclosures of attorney work product or attorney-client privileged communications.  If so, you can then address those according to the agreed-upon process for handling inadvertent disclosures and clawback of same.
  • Issue Identification: Messages associated with certain parties might be related to specific issues (e.g., an alleged design flaw of a specific subcontractor’s product), so domain categorization can isolate those messages more quickly.

In summary, there are several ways to use first pass review tools, like FirstPass, for reviewing your opponent’s ESI production, including: email analytics, synonym searching, fuzzy searching and domain categorization.  First pass review isn’t just for your own production; it’s also an effective process to quickly evaluate your opponent’s production.

So, what do you think?  Have you used first pass review tools to assess an opponent’s produced ESI?  Please share any comments you might have or if you’d like to know more about a particular topic.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine Discovery. eDiscoveryDaily is made available by CloudNine Discovery solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscoveryDaily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

eDiscovery Trends: First Pass Review – Fuzzy Searching Your Opponent’s Data
 

Even those of us at eDiscoveryDaily have to take an occasional vacation; however, instead of “going dark” for the week, we thought we would republish a post series from the early days of the blog (when we didn’t have many readers yet)  So chances are, you haven’t seen these posts yet!  Enjoy!

Tuesday, we talked about the use of First Pass Review (FPR) applications (such as FirstPass®, powered by Venio FPR™) to not only conduct first pass review of your own collection, but also to analyze your opponent’s ESI production.  One way to analyze that data is through synonym searching to find variations of your search terms to increase the possibility of finding the terminology used by your opponents.

Fuzzy Searching

Another type of analysis is the use of fuzzy searching.  Attorneys know what terms they’re looking for, but those terms may not often be spelled correctly.  Also, opposing counsel may produce a number of image only files that require Optical Character Recognition (OCR), which is usually not 100% accurate.

FirstPass supports "fuzzy" searching, which is a mechanism by finding alternate words that are close in spelling to the word you're looking for (usually one or two characters off).  FirstPass will display all of the words – in the collection – close to the word you’re looking for, so if you’re looking for the term “petroleum”, you can find variations such as “peroleum”, “petoleum” or even “petroleom” – misspellings or OCR errors that could be relevant.  Then, simply select the variations you wish to include in the search.  Fuzzy searching is the best way to broaden your search to include potential misspellings and OCR errors and FirstPass provides a terrific capability to select those variations to review additional potential “hits” in your collection.

Tomorrow, I’ll talk about the use of domain categorization to quickly identify potential inadvertent disclosures and weed out non-responsive files produced by your opponent, based on the domain of the communicators.  Hasta la vista, baby! J

In the meantime, what do you think?  Have you used fuzzy searching to find misspellings or OCR errors in an opponent’s produced ESI?  Please share any comments you might have or if you’d like to know more about a particular topic.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine Discovery. eDiscoveryDaily is made available by CloudNine Discovery solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscoveryDaily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

eDiscovery Trends: First Pass Review – Synonym Searching Your Opponent’s Data
 

Even those of us at eDiscoveryDaily have to take an occasional vacation; however, instead of “going dark” for the week, we thought we would republish a post series from the early days of the blog (when we didn’t have many readers yet)  So chances are, you haven’t seen these posts yet!  Enjoy!

Yesterday, we talked about the use of First Pass Review (FPR) applications (such as FirstPass®, powered by Venio FPR™) to not only conduct first pass review of your own collection, but also to analyze your opponent’s ESI production.  One way to analyze that data is through email analytics to see the communication patterns graphically to identify key parties for deposition purposes and look for potential production omissions.

Synonym Searching

Another type of analysis is the use of synonym searching.  Attorneys understand the key terminology their client uses, but they often don’t know the terminology their client’s opposition uses because they haven’t interviewed the opposition’s custodians.  In a product defect case, the opposition may refer to admitted design or construction “mistakes” in their product or process as “flaws”, “errors”, “goofs” or even “flubs”.  With FirstPass, you can enter your search term into the synonym searching section of the application and it will provide a list of synonyms (with hit counts of each, if selected).  Then, you can simply select the synonyms you wish to include in the search.  As a result, FirstPass identifies synonyms of your search terms to broaden the scope and catch key “hits” that could be the “smoking gun” in the case.

Thursday, I’ll talk about the use of fuzzy searching to find misspellings that may be commonly used by your opponent or errors resulting from Optical Character Recognition (OCR) of any image-only files that they produce.  Stay tuned!  🙂

In the meantime, what do you think?  Have you used synonym searching to identify variations on terms in an opponent’s produced ESI?  Please share any comments you might have or if you’d like to know more about a particular topic.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine Discovery. eDiscoveryDaily is made available by CloudNine Discovery solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscoveryDaily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

Happy Independence Day from all of us at eDiscovery Daily and CloudNine Discovery!

eDiscovery Trends: First Pass Review – of Your Opponent’s Data
 

Even those of us at eDiscoveryDaily have to take an occasional vacation; however, instead of “going dark” for the week, we thought we would republish a post series from the early days of the blog (when we didn’t have many readers yet)  So chances are, you haven’t seen these posts yet!  Enjoy!

In the past few years, applications that support Early Case Assessment (ECA) (or Early Data Assessment, as many prefer to call it) and First Pass Review (FPR) of ESI have become widely popular in eDiscovery as the analytical and culling benefits of conducting FPR have become obvious.  The benefit of these FPR tools to analyze and cull their ESI before conducting attorney review and producing relevant files has become increasingly clear.  But, nobody seems to talk about what these tools can do with opponent’s produced ESI.

Less Resources to Understand Data Produced to You

In eDiscovery, attorneys typically develop a reasonably in-depth understanding of their collection.  They know who the custodians are, have a chance to interview those custodians and develop a good knowledge of standard operating procedures and terminology of their client to effectively retrieve responsive ESI.  However, that same knowledge isn’t present when reviewing opponent’s data.  Unless they are deposed, the opposition’s custodians aren’t interviewed and where the data originated is often unclear.  The only source of information is the data itself, which requires in-depth analysis.  An FPR application like FirstPass®, powered by Venio FPR™, can make a significant difference in conducting that analysis – provided that you request a native production from your opponent, which is vital to being able to perform that in-depth analysis.

Email Analytics

The ability to see the communication patterns graphically – to identify the parties involved, with whom they communicated and how frequently – is a significant benefit to understanding the data received.  FirstPass provides email analytics to understand the parties involved and potentially identify other key opponent individuals to depose in the case.  Dedupe capabilities enable quick comparison against your production to confirm if the opposition has possibly withheld key emails between opposing parties.  FirstPass also provides an email timeline to enable you to determine whether any gaps exist in the opponent’s production.

Message Threading

The ability to view message threads for emails (which Microsoft Outlook® tracks), can also be a useful tool as it enables you to see the entire thread “tree” of a conversation, including any side discussions that break off from the original discussion.  Because Outlook tracks those message threads, any missing emails are identified with placeholders.  Those could be emails your opponent has withheld, so the ability to identify those quickly and address with opposing counsel (or with the court, if necessary) is key to evaluating the completeness of the production.

Tomorrow, I’ll talk about the use of synonym searching to find variations of your search terms that may be common terminology of your opponent.  Same bat time, same bat channel! 🙂

In the meantime, what do you think?  Have you used email analytics to analyze an opponent’s produced ESI?  Please share any comments you might have or if you’d like to know more about a particular topic.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine Discovery. eDiscoveryDaily is made available by CloudNine Discovery solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscoveryDaily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

eDiscovery Trends: Scanning May No Longer Be Cool, But it’s Still Necessary
 

Frankly, I thought the fax machine would have been retired by now.  So many documents are generated electronically these days that I would have expected that most businesses would not only accept contracts and other documents via email but also no longer support fax receipt of those same documents.  But, many business not only still receive faxes, some still only accept faxes for key documents (or require you to hand deliver).  Progress is slow.

Likewise, most documents generated these days (as much as 99%) are never printed.  Hence, discovery has often become predominantly electronic discovery, as the documents are typically electronic.  Yet, I’m still surprised how many cases still have hard copy documents that require scanning and we still see a number of projects that have several boxes of documents that need to be scanned for discovery purposes.  If you still encounter hard copy documents in your discovery collections, here are some factors to consider if you’re going to scan them or hire a vendor to do so:

  • Document Preparation and Reassembly: To prepare documents for scanning, fasteners (staples, paper clips, etc.) must generally be removed.  Slip sheets are also often inserted in between documents with bar codes to tell the scanning software where the document breaks are – in some cases, the slip sheets are sophisticated enough to track master/attachment groups of documents. Reassembly involves returning the document collection to its original condition after scanning.
  • Deskew, Despeckle and Orientation Check: When scanning, you want to get the best quality scanned document possible not only because it’s easier and clearer to review, but also because it affects the quality of the Optical Character Recognition (OCR) process used to capture words for indexing and searching.  You don’t want the image to be skewed, or have a lot of speckles or be in the wrong orientation (e.g., portrait when it should be landscape).  The poorer quality of the image, the poorer the OCR.  Of course, some original documents are poor quality and difficult to read, so you can only do so much to make the resulting image readable.  But, you want to ensure the best quality possible.
  • Quality Assurance: In addition to any automated checks performed by the software, a manual double-check is also a good idea.  Any documents with issues (such as those described above) should be investigated to determine whether a second scan pass can yield better results.
  • Optical Character Recognition: It’s important to note that, without OCR, an image is just a picture and the words on the page cannot be searched.  Lack of OCR could cause you to miss important documents for discovery.  Because OCR is not an exact science, you want to use an application that supports “fuzzy” searching of OCR text to broaden search results to include other possible “hits” for the desired search terms.
  • Bates Numbering and Endorsing: Bates numbers used to be applied by a Bates “stamp”.  Later on, pre-printed Bates labels became popular.  Today, Bates numbers and endorsements (such as “Confidential” stamps) are typically applied electronically and are either “burned in” to the image (so that they cannot be removed) or “overlaid” (so that they can be removed – this is done in some cases when producing the same document in multiple cases with different Bates numbers).  It’s important to consider your requirements when selecting a method.
  • Single or Multi Page Images:  When creating TIFF files, you can create single page or multi-page TIFF files (multi-page files are usually one file per document).  Some review applications prefer one or the other, so it’s important to know your review software preferences.  PDF files are typically multi-page.

Those are just some of the considerations when scanning hard copy documents.  When using a vendor to scan documents, it’s important to understand how they address each of the areas above.

So, what do you think?  Do you still have hard copy documents to scan in most of your cases?  Please share any comments you might have or if you’d like to know more about a particular topic.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine Discovery. eDiscoveryDaily is made available by CloudNine Discovery solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscoveryDaily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

eDiscovery Best Practices: When Litigation Hits, The First 7 to 10 Days is Critical

When a case is filed, several activities must be completed within a short period of time (often as soon as the first seven to ten days after filing) to enable you to assess the scope of the case, where the key electronically stored information (ESI) is located and whether to proceed with the case or attempt to settle with opposing counsel.  Here are several of the key early activities that can assist in deciding whether to litigate or settle the case.

Activities:

  • Create List of Key Employees Most Likely to have Documents Relevant to the Litigation: To estimate the scope of the case, it’s important to begin to prepare the list of key employees that may have potentially responsive data.  Information such as name, title, eMail address, phone number, office location and where information for each is stored on the network is important to be able to proceed quickly when issuing hold notices and collecting their data.
  • Issue Litigation Hold Notice and Track Results: The duty to preserve begins when you anticipate litigation; however, if litigation could not be anticipated prior to the filing of the case, it is certainly clear once the case if filed that the duty to preserve has begun.  Hold notices must be issued ASAP to all parties that may have potentially responsive data.  Once the hold is issued, you need to track and follow up to ensure compliance.  Here are a couple of recent posts regarding issuing hold notices and tracking responses.
  • Interview Key Employees: As quickly as possible, interview key employees to identify potential locations of responsive data in their possession as well as other individuals they can identify that may also have responsive data so that those individuals can receive the hold notice and be interviewed.
  • Interview Key Department Representatives: Certain departments, such as IT, Records or Human Resources, may have specific data responsive to the case.  They may also have certain processes in place for regular destruction of “expired” data, so it’s important to interview them to identify potentially responsive sources of data and stop routine destruction of data subject to litigation hold.
  • Inventory Sources and Volume of Potentially Relevant Documents: Potentially responsive data can be located in a variety of sources, including: shared servers, eMail servers, employee workstations, employee home computers, employee mobile devices, portable storage media (including CDs, DVDs and portable hard drives), active paper files, archived paper files and third-party sources (consultants and contractors, including cloud storage providers).  Hopefully, the organization already has created a data map before litigation to identify the location of sources of information to facilitate that process.  It’s important to get a high level sense of the total population to begin to estimate the effort required for discovery.
  • Plan Data Collection Methodology: Determining how each source of data is to be collected also affects the cost of the litigation.  Are you using internal resources, outside counsel or a litigation support vendor?  Will the data be collected via an automated collection system or manually?  Will employees “self-collect” any of their own data?  Answers to these questions will impact the scope and cost of not only the collection effort, but the entire discovery effort.

These activities can result in creating a data map of potentially responsive information and a “probable cost of discovery” spreadsheet (based on initial estimated scope compared to past cases at the same stage) that will help in determining whether to proceed to litigate the case or attempt to settle with the other side.

So, what do you think?  How quickly do you decide whether to litigate or settle?  Please share any comments you might have or if you’d like to know more about a particular topic.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine Discovery. eDiscoveryDaily is made available by CloudNine Discovery solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscoveryDaily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.