For a Successful Outcome to Your Discovery Project, Work Backwards: eDiscovery Best Practices
Based on a recent experience with a client, it seemed appropriate to revisit this topic. Plus, it’s always fun to play with the EDRM model. Notice anything different? 🙂
While the Electronic Discovery Reference Model from EDRM has become the standard model for the workflow of the process for handling electronically stored information (ESI) in discovery, it might be helpful to think about the EDRM model and work backwards, whether you’re the producing party or the receiving party.
Why work backwards?
You can’t have a successful outcome without envisioning the successful outcome that you want to achieve. The end of the discovery process includes the production and presentation stages, so it’s important to determine what you want to get out of those stages. Let’s look at them.
Whether you’re a receiving party or a producing party, it’s important to think about what types of evidence you need to support your case when presenting at depositions and at trial – this is the type of information that needs to be included in your production requests at the beginning of the case as well as the type of information that you’ll need to preserve as a producing party.
The format of the ESI produced is important to both sides in the case. For the receiving party, it’s important to get as much useful information included in the production as possible. This includes metadata and searchable text for the produced documents, typically with an index or load file to facilitate loading into a review application. The most useful form of production is native format files with all metadata preserved as used in the normal course of business.
For the producing party, it’s important to be efficient and minimize costs, so it’s important to agree to a production format that minimizes production costs. Converting files to an image based format (such as TIFF) adds costs, so producing in native format can be cost effective for the producing party as well. It’s also important to determine how to handle issues such as privilege logs and redaction of privileged or confidential information.
Addressing production format issues up front will maximize cost savings and enable each party to get what they want out of the production of ESI. If you don’t, you could be arguing in court like our case participants from yesterday’s post.
It also pays to make decisions early in the process that affect processing, review and analysis. How should exception files be handled? What do you do about files that are infected with malware? These are examples of issues that need to be decided up front to determine how processing will be handled.
As for review, the review tool being used may impact how quick and easy it is to get started, to load data and to use the tool, among other considerations. If it’s Friday at 5 and you have to review data over the weekend, is it easy to get started? As for analysis, surely you test search terms to determine their effectiveness before you agree on those terms with opposing counsel, right?
Long before you have to conduct preservation and collection for a case, you need to establish procedures for implementing and monitoring litigation holds, as well as prepare a data map to identify where corporate information is stored for identification, preservation and collection purposes.
And, before a case even begins, you need an effective Information Governance program to minimize the amount of data that you might have to consider for responsiveness in the first place.
As you can see, at the beginning of a case (and even before), it’s important to think backwards within the EDRM model to ensure a successful discovery process. Decisions made at the beginning of the case affect the success of those latter stages, so working backwards can help ensure a successful outcome!
So, what do you think? What do you do at the beginning of a case to ensure success at the end? 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. eDiscovery Daily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Daily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.