Our Insights on eDiscovery

eDiscovery sanctions are at an all-time high, according to a Duke Law Journal law review article. The article summarizes a study of 401 cases involving motions for sanctions related to discovery of electronically stored information (ESI) in federal courts through 2009, with a total of 230 sanction awards in those cases. In an increasing number of cases, more attention is focused on eDiscovery than on the merits, with a motion for sanctions becoming very common.

I have run into this issue more times than I can count. A client sends me a list of search terms that they want to use to cull a set of data for review in a Microsoft Word document. I copy the terms into the search tool and then, all hell breaks loose!! Either: The search indicates there is a syntax error — OR — The search returns some obviously odd results. And, then, I remember. It’s those stupid Word “smart quotes”.

It’s critical to know where you are on a project so you can compare your progress to your budget and schedule and make adjustments if necessary. Sometime the unexpected will cause you to fall behind. In some cases, you’ll be able to take steps to fix problems and get back on track. For example, you may be able to simplify a task without sacrificing quality or the utility of the work.

Last month, at the EDRM Mid-Year Meetings, the Information Management Reference Model (IMRM) team within EDRM presented a status report for their project (as all of the project teams do during these meetings). As a part of that presentation, the team presented findings from the first survey conducted by the Compliance, Governance and Oversight Council (CGOC) in collaboration with the IMRM of legal, records management (RIM) and IT practitioners in Global 1000 companies.

Yesterday, we talked about resolving questions quickly and keeping team members informed about changes to procedures to minimize the chance for significant rework. However, even with the best staff, mistakes happen — especially on projects that require a team of people. There are two general types of errors you can expect.

Even with the best procedures and thorough training, people who are new to a task will likely have questions. Nuances in a document collection and unexpected situations will surface that don’t fit into your rules. It is very important that questions are resolved quickly. Most document work is repetitive. Many questions, therefore, will apply to more than one document. If a question is not resolved quickly, there is a good chance that many documents will be affected, and you may face significant rework.

There are different types of exception files that might be encountered in a typical ESI collection and it’s important to know how those files can be recovered. It’s also important to note that efforts to “fix” these files will often also change the files (and the metadata associated with them), so it’s important to establish with opposing counsel what measures to address the exceptions are acceptable. Some files may not be recoverable and you need to agree up front how far to go to attempt to recover them.

Virtually every collection of electronically stored information (ESI) has at least some files that cannot be effectively searched. Corrupt files, password protected files and other types of exception files are frequent components of your ESI collection and it can become very expensive to make these files searchable or reviewable. Being without an effective plan for addressing these files could lead to problems – even spoliation claims – in your case.