Our Insights on eDiscovery

Years ago, I put together a CLE course about metadata awareness and how hidden data (such as tracked changes and comments) can cause embarrassment or even inadvertent disclosures in eDiscovery. The production of metadata with ESI continues to be a big issue in eDiscovery and organizations need to consider how to handle that metadata (especially if it’s hidden), to avoid issues. Last fall, the American Bar Association published an article with a look at metadata ethics opinions, which have focused on three topics with regard to metadata production.

Yesterday, we covered drafting criteria for responsiveness. You may, however, be asking the review team to do more than identify responsive documents. You might, for example, also ask them to identify privileged documents, significant documents, documents that need to be redacted, documents that need to be reviewed by an expert, and so on. In this issue, we’ll talk about reviewing for privilege.

The criteria that you prepare for the review will be governed by the objectives that you established for the review. At a minimum, you’ll draft criteria for responsive documents. In addition, you may draft criteria for privileged documents, hot documents, and so on. Let’s start with drafting responsive criteria.

In theory, responsive documents are described in the other side’s request for production. In practice, those requests are often open to interpretation. Your goal in drafting responsive criteria is to distill those requests and create a clear set of objective rules that leave little room for interpretation – a set of rules that can be applied correctly and consistently to the document collection.

Once you’ve defined the objectives of the review, you need to move forward with other preparation steps: You need to draft review criteria, you need to identify the type of people that are appropriate for the review, and you need to pull that team together. Before moving forward with these steps, you need a bit more information. You need to know what’s in the document collection.

Recently, this blog cited a Duke Law Journal study that indicated that eDiscovery sanctions were at an all-time high through 2009. Then, a couple of weeks ago, I saw a story recently from Williams Mullen providing a very thorough recap of 2010 including trends in sanctions (identifying several cases where sanctions were at issue), advances made during the year in cooperation and proportionality, challenges associated with privacy concerns in foreign jurisdictions and trends in litigation dealing with social media. One noteworthy finding is that, according to the report, sanctions were sought and awarded in fewer cases in 2010.