Close
Enter your
text here

Project Management

eDiscovery Best Practices: Issuing the Hold is Just the Beginning

Yesterday, we discussed identifying custodians, preparing a written litigation hold, issuing the hold and tracking responses.  Today, we’ll discuss interviewing hold notice recipients, follow up on notices, releasing holds when the obligation to preserve is removed and tracking all holds within an organization.  Here are the rest of the best practices for implementing a litigation hold.

Interviewing Hold Notice Recipients: Depending on the case, follow-up interviews (with at least the key custodians) are generally accepted as a best practice and may be necessary to ensure defensibility of the notice.  The point of these interviews is to repeat the duty to preserve, provide a detailed explanation of the requirements of the hold, answer the recipient’s questions (if any), and confirm that the recipient understands and agrees to adhere to the notice. You should keep written records of each of these interviews and document the reasoning for determining which individuals to interview.

Follow-Up on Hold Notices: For a litigation hold plan to be successful and defensible, it needs to include periodic follow-up reminders to recipients of the notices to inform them that the data in question remains under hold until the case concludes. Follow-up reminders could simply be a retransmission of the original notice or they could be a summary of all of the notices the individual has received, if there are multiple cases with holds for that individual. There is no specific requirement on how often the reminders should be sent, but it’s best to send them at least quarterly.  For some cases, it may be necessary to send them monthly.

Release the Hold: Not to be confused with “release the hounds”, it is just as important to inform people when the duty to preserve the data expires (typically, when the case is completed) as it is to notify them when the duty to preserve begins.  Releasing the hold is key to ensure that information doesn’t continue to be preserved outside of the organization’s document retention policies – if it is, it may then become subject to litigation holds in other litigations unnecessarily.  Releasing the hold also helps keep custodians from being overwhelmed with multiple retention notices, which could cause them to take the notices less seriously.  However, the release notification should be clear with regard to the fact that data subject to hold in another matter should continue to be preserved to meet discovery obligations in that matter.

Hold Tracking System: It’s important to have a reliable “system” for tracking litigation holds across all matters within the organization. Depending on your needs, that could be a customized application or a simple database or spreadsheet to track the information.  You should keep historical tracking data even for completed matters as that information can be useful in guiding hold issuance on new matters (by helping to identify the correct custodians for new matters that are factually similar or related to current closed or open matters).  At a minimum, a tracking system should:

  • Track responses from individual custodians and identify those who have not yet responded,
  • Track periodic reminder notices and release notices,
  • Provide ability to report a list of people with a duty to preserve for a specific matter as well as all matters for which a person is under retention.

So, what do you think?  Do you have a solid “hold” on your hold process?  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: Hold It Right There!
 

When we reviewed key case decisions from last year related to eDiscovery, the most case law decisions were those related to sanctions and spoliation issues.  Most of the spoliation sanctions were due to untimely or inadequate preservation of the data for litigation.  As noted in Zubulake, Judge Shira Sheindlin ruled that parties in litigation have an obligation to preserve potentially relevant data as soon as there is a reasonable expectation that data may be relevant to future litigation.  However, even if the party reacts in a timely manner to take steps to preserve data through a litigation hold, but executes those steps poorly, data can be lost and sanctions can occur.  Here are some best practices for implementing a litigation hold.

The most effective litigation hold plans are created before actual litigation arises and applied consistently across all matters. While cases and jurisdictions vary and there are not many hard and fast rules on implementing litigation holds, there are generally accepted best practices for implementing holds.  Implementation of a litigation hold generally includes each of the steps identified below:

Identify Custodians: As we learned in Voom HD Holdings v. EchoStar Satellite LLC, 600292/08, It’s important to completely identify all potential custodians and suspend any automatic deletion policies that might result in deletion of data subject to litigation.  In this case, EchoStar put a litigation hold in place, instructing employees to save anything that they deemed potentially relevant to the litigation, but did not extend this hold to stopping automatic deletion of eMails from EchoStar's computers until four months later in June 2008.  As a result of their untimely and incomplete hold, EchoStar was given an adverse inference sanction (their second one!).

Custodians can be individuals or non-custodial (i.e., not held by a specific individual) sources such as IT and records management departments.  To determine a complete list of custodians, it’s generally best to conduct interviews of people identified as key players for the case, asking them to identify other individuals who are likely to have potentially relevant data in their possession.

Prepare Written Hold Notice: Hold notices should be in writing, and should typically be written in a standard format.  They should identify all types of data to be preserved and for what relevant period.  Sometimes, hold notices are customized depending on the types of custodians receiving them (e.g., IT department may receive a specific notice to suspend tape destruction or disable auto-deletion of emails).

Distribute Hold Notice: It is important to distribute the notice using a communication mechanism that is reliable and verifiable. Typically, this is via email. It’s rare to use paper notices anymore as they are more difficult to track. Distribution should occur only to the selected and specific individuals likely to have potentially relevant information, usually not company-wide, as not everyone will understand the parameters of the hold.  Notices with overly broad distributions have, in some cases, been deemed inadequate by courts.

Track Responses: It is advisable to require recipients of the litigation hold notice to confirm their receipt and understanding of the notice via a method that can be tracked.  Receipt and read notifications or voting buttons in emails could be used for this purpose, but they may not always be acceptable, since there is no guarantee that the recipient actually read or understood the notice.  Perhaps a better approach is to send each recipient an attached form that enables them to acknowledge each instruction within the hold notice to confirm a more complete understanding – these forms can even be set up as enterable PDF forms that even enable digital signatures so that no printing is required.

Tomorrow, we’ll discuss follow up on notices, releasing holds when the obligation to preserve is removed and tracking all holds within an organization.  Hasta la vista, baby!

So, what do you think?  Do you have a solid “hold” on your hold process?  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 Daily Is Eighteen! (Months Old, That Is)
 

Eighteen months ago yesterday, eDiscovery Daily was launched.  A lot has happened in the industry in eighteen months.  We thought we might be crazy to commit to a daily blog each business day.  We may be crazy indeed, but we still haven’t missed a business day yet.

The eDiscovery industry has grown quite a bit over the past eighteen months and is expected to continue to do so.   So, there has not been a shortage of topics to address; instead, the challenge has been selecting which topics to address.

Thanks for noticing us!  We’ve more than doubled our readership since the first six month period, had two of our biggest “hit count” days in the last month and have more than quintupled our subscriber base since those first six months!  We appreciate the interest you’ve shown in the topics and will do our best to continue to provide interesting and useful eDiscovery news and analysis.  And, as always, please share any comments you might have or if you’d like to know more about a particular topic!

We also want to thank the blogs and publications that have linked to our posts and raised our public awareness, including Pinhawk, The Electronic Discovery Reading Room, Unfiltered Orange, Atkinson-Baker (depo.com), Litigation Support Technology & News, Next Generation eDiscovery Law & Tech Blog, InfoGovernance Engagement Area, Justia Blawg Search, Learn About E-Discovery, Ride the Lightning, Litigation Support Blog.com, ABA Journal, Law.com and any other publication that has picked up at least one of our posts for reference (sorry if I missed any!).  We really appreciate it!

As we’ve done in the past, we like to take a look back every six months at some of the important stories and topics during that time.  So, here are some posts over the last six months you may have missed.  Enjoy!

eDiscovery Trends: Is Email Still the Most Common Form of Requested ESI?

eDiscovery Trends: Sedona Conference Provides Guidance for Judges

eDiscovery Trends: Economy Woes Not Slowing eDiscovery Industry Growth

eDiscovery Law: Model Order Proposes to Limit eDiscovery in Patent Cases

eDiscovery Case Law: Court Rules 'Circumstantial Evidence' Must Support Authorship of Text Messages for Admissibility

eDiscovery Best Practices: Cluster Documents for More Effective Review

eDiscovery Best Practices: Could This Be the Most Expensive eDiscovery Mistake Ever?

eDiscovery 101: Simply Deleting a File Doesn’t Mean It’s Gone

eDiscovery Case Law: Facebook Spoliation Significantly Mitigates Plaintiff’s Win

eDiscovery Best Practices: Production is the “Ringo” of the eDiscovery Phases

eDiscovery Case Law: Court Grants Adverse Inference Sanctions Against BOTH Sides

eDiscovery Trends: ARMA International and EDRM Jointly Release Information Governance White Paper

eDiscovery Trends: The Sedona Conference International Principles

eDiscovery Trends: Sampling within eDiscovery Software

eDiscovery Trends: Small Cases Need Love Too!

eDiscovery Case Law: Court Rules Exact Search Terms Are Limited

eDiscovery Trends: DOJ Criminal Attorneys Now Have Their Own eDiscovery Protocols

eDiscovery Best Practices: Perspective on the Amount of Data Contained in 1 Gigabyte

eDiscovery Case Law: Computer Assisted Review Approved by Judge Peck in New York Case

eDiscovery Case Law: Not So Fast on Computer Assisted Review

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: The Rest of the Team
 

When beginning a new eDiscovery project, it's important to start by estimating the various tasks that will need to be performed and the type of personnel that will be needed. As the project unfolds, the tasks required to complete it may change, so it is important to revisit the project tasks and assignments to determine whether additional personnel are needed or if you can cut back. Yesterday, we began discussing the types of roles that could be associated with a typical eDiscovery project, here are some more:

Processing Personnel: After your team has identified and collected the ESI, it will usually be necessary to process that ESI with one or more software applications to prepare the data for searching and review to reduce or cull the data volume (such as an early case assessment tool like FirstPass®, powered by Venio FPR™) and limit review to the most highly relevant documents. There are several tools and/or service providers available to process your ESI; it’s simply a matter of selecting the best tool(s) for your organization. For each case, key decision makers on the team will need to evaluate the specific needs of that case to determine whether additional software or an outside vendor is needed and select the appropriate software to license and/or vendor to engage, if so.

Document Review Personnel: After identifying, collecting and processed the ESI, it needs to be reviewed by qualified review personnel to at least determine if it is responsive to the production request from opposing counsel and if it should be withheld due to a claim of privilege. Depending on the case, the ESI may need to be reviewed for other reasons or the review for responsiveness and/or privilege may be more in-depth.  Usually, the reviewers are licensed attorneys; though, experienced paralegals are used in some cases. Either way, they will require training and guidance regarding the expectations of their job in general, receive instructions on the specific review project which they are working on, and be properly trained on use of the selected review application.

Hosting Provider: Depending on the case, you may use a hosting provider for the ESI from as early as collection through production. Large volume of ESI to be processed and reviewed, requirement to distribute review tasks across personnel who may be in different geographical locations, and the arrangements between the parties concerning the method and format of production are factors for deciding to use a hosting provider and also for selecting the desired provider.

Attorney(s): Did you think I forgot the attorneys?  Of course, potentially complicated legal questions and issues arise in just about any discovery project, so you need an attorney who understands the legal rules and complexities associated with discovery of ESI. If the lead attorney doesn’t have the requisite knowledge in this area, it may be necessary to add an attorney with specialized eDiscovery knowledge to the team to provide advice and coordination on discovery issues.  Many corporations have designated attorneys or paralegals on their in house legal staff who work on all eDiscovery matters; however, some organizations may also use outside eDiscovery counsel to work on discovery-related matters even if they’re not part of the firm representing the organization.

Each case will have unique requirements that affect the make-up and size of the team, so not all of the roles discussed over the past two days will be required for every case and the number of personnel in each role may also vary.

So, what do you think?  Do you estimate the team members needed for your project before it begins?  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: Who’s On Your Team?
 

When beginning a new eDiscovery project, a good place so start is to estimate the various tasks that will need to be performed and identify the type of personnel that will be needed. Every project is different and unique, so the requirements of each project must be assessed. As the project unfolds, the tasks required to complete it may change – not just in terms of tasks added, but also tasks removed if the work is deemed to be unnecessary.  So, it is important to revisit the project tasks and assignments to determine whether additional personnel are needed or if you can cut back. Here are the types of roles that could be associated with a typical eDiscovery project:

Client Contact(s): It’s important for the client to be involved in the process, so the team should include at least one client representative that can serve as the link between the internal and external teams, providing guidance on internal company workings and contact personnel. Typically, the client contact is from the in-house legal department, usually either a paralegal (to handle routine tasks) or an attorney (to discuss issues and coordinate decision making).  When preservation and collection are required, the client contact(s) generally assist with litigation hold procedures, locating and collecting ESI, and conducting interviews of custodians. It is up to the client contact(s) to involve key managers and custodians as needed to provide guidance during this process.

IT Personnel: When responding to requests for ESI, let’s face it – you need your trusty geek.  Or geeks.  It’s important to include personnel who understand technical details about the client’s various computer systems and data.  Depending on the case, you need one or more individuals who understand any and all of the above: email and email archiving, storage of employee ESI, servers, clients, intranets, and databases. It’s typical for IT personnel in larger organizations to specialize; for example, to have one or more that is more knowledgeable about structured data (i.e. database programs) while others may understand and have access to email systems. 

IT personnel should be involved in all issues related to the technology for the responding party to increase efficiency and optimize the approach to each new case. For many corporations, this is typically one or more individuals already employed as a member of the IT staff.  It’s important for IT personnel to have at least a basic understanding of the legal processes and requirements of discovery.  If they don’t have that, it may be necessary to provide some training before a case arises or employ an outside consultant.

Forensic Collection Personnel: In some cases, it’s necessary to perform forensic analysis on various types of ESI (or at least collect the ESI in a forensic manner in the event that’s required). Examples of cases that may require forensic collection of electronic data include internal integrity investigations, situations where fraud and data deletion are suspected (such as trade secret cases) and government civil or criminal investigations. To enable the forensic specialist to testify (if required) to the work that was performed and exactly how it was done, companies often use a vendor not employed by the company or by the outside law firm.

See at least one critical team component missing?  Tomorrow, we’ll talk about the rest of the team.  Same bat time, same bat channel!

So, what do you think?  Do you estimate the team members needed for your project before it begins?  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: Deadly Sins of Document Review

With all of the attention on Technology Assisted Review (TAR) during the LegalTech New York (LTNY) show, you would think that no one is conducting manual review anymore.  However, even the staunchest advocates of TAR that I spoke to last week indicated that manual review is still a key part of an effective review process where technology is used to identify potentially responsive and privileged ESI before the manual review process enables the final determinations to be made.

There are “dos” and “don’ts” for conducting an effective manual review.  There was an interesting article in Texas Lawyer (via Law Technology News) entitled The 7 Deadly Sins of Document Review by Dalton Young that focuses on the “don’ts”.  As review is the most expensive phase of the eDiscovery process and legal budgets are stretched to the limit, it’s important to get the most out of your spend on manual review.  With that in mind, here are the seven deadly sins of document review (along with a few of my observations):

  1. Hiring overqualified reviewers: Although there are many qualified lawyers available due to the recent recession, those lawyers often don’t have as much experience as seasoned review paralegals, who are also less expensive and less likely to leave for another offer.
  2. Failing to establish a firm time commitment: If lead counsel doesn’t clearly establish the expected review timeline up front and expect reviewers to commit to that time frame, turnover of reviewers can drive up costs and delay project completion.
  3. Failing to provide reviewers with thorough training on the review tools: Train beyond just the basics so that reviewers can take advantage of advanced software features and training starts with lead counsel.  I would adjust this point a bit: Lead counsel needs to become fully proficient on the review tools, then develop a workflow that manages the efficiency of the reviewers and train the reviewers according to that workflow.  While it may be nice for reviewers to know all of the advanced search features, full understanding of searching best practices isn’t something that can be accomplished in a single training session and should be managed by someone with considerable experience using advanced searching capabilities in an efficient and defensible manner.
  4. Failing to empower reviewers with sufficient background on the case: Providing reviewers with not just a list of expected key words, but also an understanding of the issues of the case enables them to recognize important documents that might not fit within the key words identified.  I would also add that it’s important to have regular “huddles” so that learned knowledge by selected reviewers can be shared with the entire team to maximize review effectiveness.
  5. Failing to foster bonds within the review team: Just like any other team member, reviewers like to know that they’re an important part of the cause and that their work is appreciated, so treating them to lunch or an occasional happy hour can foster a more enjoyable work environment and increase reviewer retention.
  6. Failing to predetermine tags and codes before the project begins: A lead member of the law firm should complete an overview of the discovery to identify the process and establish tags up front instead of “on the fly” as review progresses (even though that tag list will often need to be supplemented regardless how well the upfront overview is conducted).  I would add inclusion of one or more subject matter experts in that upfront process to help identify those tags.
  7. Providing reviewers with a too-structured work environment: The author indicates that counsel should “consider providing a relaxed, somewhat self-directed work environment”.  The key here is “somewhat”, but flexibility in start and stop work times and break/lunch times can enable you to keep good reviewers who may need some flexibility.  Regular monitoring of reviewer metrics will enable the review manager to confirm that reviewer performance is not adversely affected by increased flexibility, or adjust accordingly if the review environment becomes too lax.

So, what do you think?  Are there other “deadly sins” that the author doesn’t mention?  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 Case Law: Another Losing Plaintiff Taxed for eDiscovery Costs

As noted yesterday and back in May, prevailing defendants are becoming increasingly successful in obtaining awards against plaintiffs for reimbursement of eDiscovery costs.

An award of costs to the successful defendants in a patent infringement action included $64,295 in costs for conversion of data to TIFF format and $5,950 for an eDiscovery project manager in Jardin v. DATAllegro, Inc., No. 08-CV-1462-IEG (WVG), (S.D. Cal. Oct. 12, 2011).

Defendants in a patent infringement action obtained summary judgment of non-infringement and submitted bills of costs that included $64,295 in costs for conversion of data to TIFF format and $5,950 for an eDiscovery project manager. Plaintiff contended that the costs should be denied because he had litigated the action and its difficult issues in good faith and there was a significant economic disparity between him and the corporate parent of one of the defendants.

The court concluded that plaintiff had failed to rebut the presumption in Fed. R. Civ. P. 54 in favor of awarding costs. The action was resolved through summary judgment rather than a complicated trial, and there was no case law suggesting that the assets of a parent corporation should be considered in assessing costs. The financial position of the party having to pay the costs might be relevant, but it appeared plaintiff was the founder of a company that had been sold for $500 million.

Taxing of costs for converting files to TIFF format was appropriate, according to the court, because the Federal Rules required production of electronically stored information and “a categorical rule prohibiting costs for converting data into an accessible, readable, and searchable format would ignore the practical realities of discovery in modern litigation.” The court stated: “Therefore, where the circumstances of a particular case necessitate converting e-data from various native formats to the .TIFF or another format accessible to all parties, costs stemming from the process of that conversion are taxable exemplification costs under 28 U.S.C. § 1920(4).”

The court also rejected plaintiff’s argument that costs associated with an eDiscovery “project manager” were not taxable because they related to the intellectual effort involved in document production:

Here, the project manager did not review documents or contribute to any strategic decision-making; he oversaw the process of converting data to the .TIFF format to prevent inconsistent or duplicative processing. Because the project manager’s duties were limited to the physical production of data, the related costs are recoverable.

So, what do you think?  Will more prevailing defendants seek to recover eDiscovery costs from plaintiffs? Please share any comments you might have or if you’d like to know more about a particular topic.

Case Summary Source: Applied Discovery (free subscription required).  For eDiscovery news and best practices, check out the Applied Discovery Blog here.

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 Project Management: “Belt and Suspenders” Approach for Effective Communication
 

eDiscovery Daily has published 57 posts to date related to Project Management principles (including this one).  Those include two excellent series by Jane Gennarelli, one covering a range of eDiscovery Project Management best practice topics from October thru December last year, and another covering management of a contract review team, which ran from January to early March this year.

Effective communication is a key part of effective project management, whether that communication is internally within the project team or externally with your client.  It is so easy for miscommunications to occur that can derail your project and cause deadlines to be missed, or work product to be incomplete or not meet the client’s expectations.

I like to employ a “belt and suspenders” approach to communication with clients as much as possible, by discussing requirements or issues with the client and then following up with documentation to confirm the understanding.  That seems obvious and many project managers start out that way – they discuss project requirements and services with a client and then formally document into a contract or other binding agreement.  However, as time progresses, many PMs start to lax in following up to document changes discussed to scope or approach to handling specific exceptions with clients.  Often, it’s the little day to day discussions and decisions that aren’t documented that can come back to haunt you. Or PMs communicate solely via email and keep the project team waiting for the client to respond to the latest email.  Unless there is a critical decision for which documented agreement is required to proceed, discussing and documenting keeps the project moving while ensuring each decision gets documented.

I can think of several instances where this approach helped avoid major issues, especially with the follow-up agreement or email.  If nothing else, it gives you something to point back to if miscommunication occurs.  Years ago, I met with a client and reviewed a set of hard copy documents that they wanted scanned, processed and loaded into a database (we had a Master Services Agreement in place to cover those services).  The client said they had “sticky notes” on the documents that they wanted.  I took the time to go through those, ask questions and verbally confirm my understanding of which documents they wanted processed.  I then documented in an email what services they wanted and the ranges of documents they requested to be processed and they confirmed the services and those documents in their response (evidently without looking too closely at the list of document ranges).

What the client didn’t know is that one of their paralegals had removed “sticky notes” from some of the documents, so I didn’t have all of the document ranges they intended to process.  When they later started asking questions why certain documents weren’t processed, I was able to point back to the email showing their approval of the document ranges to process, verifying that we had processed the documents as instructed.  The client realized the mistake was theirs, not ours, and we helped them get the remaining documents processed and loaded.  Our reputation with that client remained strong – thanks to the “belt and suspenders” approach!

So, what do you think?  Have you had miscommunications with clients because of inadequate documentation? Please share any comments you might have or if you’d like to know more about a particular topic.

eDiscovery Best Practices: When Preparing Production Sets, Quality is Job 1
 

OK, I admit I stole that line from an old Ford commercial… 😉

Yesterday, we talked about addressing parameters of production up front to ensure that those requirements make sense and avoid foreseeable production problems well before the production step.  Today, we will talk about quality control (QC) mechanisms to make sure that the production is complete and accurate.

Quality Control Checks

There are a number of checks that can and should be performed on the production set, prior to producing it to the requesting party.  Here are some examples:

  • File Counts: The most obvious check you can perform is to ensure that the count of files matches the count of documents or pages you have identified to be produced.  However, depending on the production, there may be multiple file counts to check:
    • Image Files: If you have agreed with opposing counsel to produce images for all documents, then there will be a count of images to confirm.  If you’re producing multi-page image files (typically, PDF or TIFF), the count of images should match the count of documents being produced.  If you’re producing single-page image files (usually TIFF), then the count should match the number of pages being produced.
    • Text Files: When producing image files, you may also be producing searchable text files.  Again, the count should match either the documents (multi-page text files) or pages (single-page text files) with one possible exception.  If a document or page has no searchable text, are you still producing an empty file for those?  If not, you will need to be aware of how many of those instances there are and adjust the count accordingly to verify for QC purposes.
    • Native Files: Native files (if produced) are typically at the document level, so you would want to confirm that one exists for each document being produced.
    • Subset Counts: If the documents are being produced in a certain organized manner (e.g., a folder for each custodian), it’s a good idea to identify subset counts at those levels and verify those counts as well.  Not only does this provide an extra level of count verification, but it helps to find the problem more quickly if the overall count is off.
    • Verify Counts on Final Production Media: If you’re verifying counts of the production set before copying it to the media (which is common when burning files to CD or DVD), you will need to verify those counts again after copying to ensure that all files made it to the final media.
  • Sampling of Results: Unless the production is relatively small, it may be impractical to open every last file to be produced to confirm that it is correct.  If so, employ accepted statistical sampling procedures (such as those described here and here for searching) to identify an appropriate sample size and randomly select that sample to open and confirm that the correct files were selected, HASH values of produced native files match the original source versions of those files, images are clear and text files contain the correct text.
  • Redacted Files: If any redacted files are being produced, each of these (not just a sample subset) should be reviewed to confirm that redactions of privileged or confidential information made it to the produced file.  Many review platforms overlay redactions which have to be burned into the images at production time, so it’s easy for mistakes in the process to cause those redactions to be left out or burned in at the wrong location.
  • Inclusion of Logs: Depending on agreed upon parameters, the production may include log files such as:
    • Production Log: Listing of all files being produced, with an agreed upon list of metadata fields to identify those files.
    • Privilege Log: Listing of responsive files not being produced because of privilege (and possibly confidentiality as well).  This listing often identifies the privilege being asserted for each file in the privilege log.
    • Exception Log: Listing of files that could not be produced because of a problem with the file.  Examples of types of exception files are included here.

Each production will have different parameters, so the QC requirements will differ, so there are examples, but not necessarily a comprehensive list of all potential QC checks to perform.

So, what do you think?  Can you think of other appropriate QC checks to perform on production sets?  If so, please share them!  As well as any comments you might have or if you’d like to know more about a particular topic.

eDiscovery Trends: New York Pilot Program Requires Joint Electronic Discovery Submission for Cases Involving ESI
 

On November 1, 2011, the Southern District of New York implemented a new Pilot Program for Complex Cases in "response to the federal bar's concerns about the high costs of litigating complex civil cases." The program is "designed to improve judicial case management of these disputes and reduce costs and delay" and will run for eighteen months.

Fourteen types of civil lawsuits are designated as "complex civil cases," including "stockholder's suits, patent and trademark claims, product liability disputes, multi-district litigation, and class actions." District court judges have the power to add or remove a case from the pilot, even if it does not fall in these categories.

Parties to complex cases must submit Exhibit B, Joint Electronic Discovery Submission if they believe relevant ESI that is potentially responsive to current or future discovery requests exists. In addition, parties must certify that "they are sufficiently knowledgeable in matters relating to their clients' technological systems to discuss competently issues relating to electronic discovery, or have involved someone competent to address these issues on their behalf." They must also meet and confer prior to the Rule 16 conference on preservation; methodologies for search and review; sources of ESI; limitations on the scope of production; form of production; managing privileged material, including inadvertent production, clawback and quick peek agreements, and Rule 502(d) orders; and the costs of production, cost-saving measures, and cost allocation.

So, what do you think?  Should more jurisdictions adopt such a program? Or should they wait until the results of this pilot are published?  Please share any comments you might have or if you’d like to know more about a particular topic.

Case Summary Source: Applied Discovery.  For eDiscovery news and best practices, check out the Applied Discovery Blog here.

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.