Our Insights on eDiscovery

Some weeks there is so much to cover in eDiscovery that it’s difficult to get to everything. This is one of those weeks. Like me, several of you are fans of Rob Robinson’s quarterly eDiscovery Business Confidence Survey on his Complex Discovery blog and he has just published the results of his Spring 2019 Survey, which are very interesting and I will (hopefully) post my normal analysis on that tomorrow. But, Craig Ball has posted – not just one, but two – interesting posts on his Ball in Your Court blog this week that definitely need to be covered as well. “Ball” comes before “Robinson” alphabetically, so I’ll cover his posts first. ;o)

Last year, The Sedona Conference® (TSC) published a bunch of…er…publications. That included the Public Comment Version of their Primer on Social Media, Second Edition, the Public Comment version of its Commentary on BYOD: Principles and Guidance for Developing Policies and Meeting Discovery Obligations and the final version of its new Data Privacy Primer. Now, TSC has published the final versions of two other guides for which it published the public comment version last year.

Where is my brain?!? I’ve forgotten to mention this before now! In today’s era of growing data privacy concerns with GDPR and CCPA, increase in harassment claims with #MeToo and rising corporate malfeasance concerns, there are a lot of potential compliance and investigations needs with regard to discovery that organizations have today whether or not they ever lead to litigation. Want to find out how to address these various challenges? Tune in tomorrow!

So, what are some recommendations for minimizing production mistakes? Here’s one hint: start VERY early. Let’s take a look at some recommendations and tips.

Problems with productions have plagued us for years and none are more prevalent than load file errors. I recall a consultant in Seattle nearly 20 years ago who spent 2/3 of his times cleaning up Summation load files for clients. And the problems haven’t decreased as technology has improved. Let’s take a look at some of those problems.

I know that working on some eDiscovery projects with difficult clients or opposing parties could get you thinking of murder, but, as I said before, I don’t know why anyone would consider committing a murder these days with DNA and all the ways we are tracked by Internet of Things (IoT) devices. However, if you like to solve murders and are in the DC area (or plan to be in mid-May), here’s an event that’s for you. Even better, your participation helps benefit a great cause!

One of the most common technical mistakes lawyers make involve issues with redactions – there are frequent stories that make the news regarding lawyers publishing documents that were improperly redacted. Redaction issues are also the most common error in document productions in eDiscovery as well. There are a variety of issues associated with redactions and they have considerable impact on a lawyer’s ethical duty to confidentiality. Let’s take a look.

The aim of document productions in the ESI world is succinctly stated by the EDRM: To prepare and produce ESI in an efficient and usable format in order to reduce cost, risk and errors and be in compliance with agreed production specifications and timelines. Sounds simple, right? Yet, we’re seeing so many issues and problems with productions. Why is that? Let’s take a look.