Our Insights on eDiscovery

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.

Yesterday, we introduced the blog series to discuss Managing an eDiscovery Contract Review Team. Now, it’s time to get started! The first step in preparing for a document review is to very clearly define the objectives of the review. It’s an easy step, but it’s very important. It will drive several subsequent decisions that you’ll make regarding management of the project.

In a perfect world, attorneys responsible for a case would review an entire document collection for responsive materials. On large cases with huge collections, that’s just not practical or possible. In those situations, your only choice may be to pull together a team of contract reviewers to identify responsive materials.

On November 1 of last year, we noted on this blog that Oklahoma had become the latest state to adopt amendments to their Rules of Civil Procedure, leaving only 14 states (including DC) to not have enacted any rules changes that address discovery of ESI as of January 1st of this year. That’s because on January 1, Wisconsin became the latest state to adopt eDiscovery amendments to their Rules of Civil Procedure.