When I wrote about the emotions in eDiscovery a few months ago, I was surprised at how many conversations it started. It seems everyone has a story about the fear and anger eDiscovery can drum up. It also spurred a lot of questions and requests for more information.
As promised, below you will find more information and, even better, 5 recommended actions you can take to overcome the fear of eDiscovery.
Let’s start at the beginning: eDiscovery is a very emotional process.
Emotions in eDiscovery? Yes. Let me explain.
Electronically Stored Information (ESI). eDiscovery. Electronic Discovery. However you refer to it, the topic is an important one in today’s legal world and becoming more so each day. I have found that identifying the emotions that often come up with eDiscovery related issues can truly help and actually turn eDiscovery from a topic of anger and annoyance into a weapon that skilled litigators use to their advantage.
In each case, our goal is to help our clients quickly gain access to all of the ESI they are legally entitled to and to do so without breaking the budget. How do we get there? Well, first let’s look at where we start.
“Why do we have to deal with all of these emails and text messages?”
To some, this question may seem silly and outdated. All too often in today’s legal world, it is still asked in a whisper or behind closed doors. We can evaluate this from a number of angles, but I prefer to look at the emotional basis of the question: fear.
Whether it is fear of change, fear of the unknown or fear of looking uneducated, many litigators are still fearful of Electronically Stored Information in the discovery process. Having survived over 17 years in the litigation support space as an eDiscovery consultant, I have come to accept that the closest emotion to fear on the emotional spectrum is anger. When we first engage with a client dealing with an eDiscovery “problem” we often sense the anger and work to identify and address the underlying fear.
What’s there to be fearful of anyways?
Given the realities that are created when the legal and electronic worlds collide, don’t be too quick to judge others or yourself for being scared or angry. A few of the challenges that lead to this emotional reaction are:
- Quickly emerging technology
- Ever changing rules and regulations
- The large upfront costs often required to properly conduct electronic discovery
- Exponential growth of data volumes
- Opposing counsel with vast resources to gain an upper hand against the little guy
- Inconsistent application of rules across jurisdictions and judges
- Various ESI educational levels in the judiciary
- Legal opinions that seemingly change the rules of engagement on a daily basis
Litigators simply have enough on their legal plates that they don’t have the time or the desire to become “IT nerds” as well. This creates a significant problem as Business Insider estimates that over 90% of all content created in 2012 never made it to paper. This means if you “ignore” the ESI in a case, you are potentially litigating it based on only 10% of the information.
One litigator recently put it to me like this, “I miss the days where I could walk into the courtroom with a red rope of key documents that I knew I could win my case with.” The job of outside litigation/ESI consultants is to help our clients do just that. By leveraging knowledge of the rules and utilizing the latest proven technologies, it is still possible to sort through the mountains of ESI and litigate a case based on a red rope of documents. The process to get there has just changed.
The most important time to think about and discuss eDiscovery in a case is in the beginning. We often encourage our clients to “begin with the end in mind”. By this we mean to start working from Day 1 with the goal of getting your red rope of documents ready for trial (or whatever end goal you may have). It sounds simple but as the apparent trend fighting the production of eDiscovery to death continues to grow among large corporations, it’s critical to stay focused on why it is so important to stand your ground. 90% of the discovery you need is potentially at stake!
Turn fear into confidence with these 5 key areas of eDiscovery:
There are 5 specific areas of eDiscovery that often get used against, or that go largely ignored by, many of the litigators we come in contact with. We start with these 5 areas when engaged by a client as this is where, historically, those with the most knowledge and experience take advantage of those with the least.
1. Preservation vs. Production:
Whether done in a ‘meet and confer’ setting or through proposed ESI/production protocol language, producing parties sometimes throw in language such as “both parties agree that only readily accessible data sources that are likely to contain discoverable information need to be preserved and collected” or “both sides agree that only standard data sources shall be preserved, collected and reviewed for production; absent an extraordinary circumstance, backup tapes/devices and other non-active data sources shall be excluded”. The danger in agreeing to a clause such as one of the previous examples is two-fold.
First, what sources are they going to consider readily available? Are mobile devices (cell phones, tablet computers, etc.) considered readily available? How about voicemails, unstructured data from databases used for project tracking, sales or accident reporting purposes? AutoCAD files? The point is, without clear definition the producing party can (and likely will) use the gray area to not preserve, collect, review and produce these potentially critical data sources. In most jurisdictions and with most judges, if you agree to a clause like one of the examples listed above, you will be held to your waiver of data sources.
The second reason to not agree to statements like those is that the duty to preserve and the duty to produce are not one in the same. Preservation is a low to no cost action that prevents manual deletion, interrupts automatic deletion procedures and directly instructs all potential custodians to not toss their mobile device in a trash can. If there is going to be a fight over accessibility, burden or proportionality, that should take place after the preservation efforts have occurred and before collection, review or production. Additionally, we strongly advise against any waiver of preservation for potential data sources without first being given a copy of the producing party’s data preservation and retention policy that governs each particular source. Only then, are you able to begin making an informed decision.
With the recent changes to the Federal Rules of Civil Procedure (FRCP), specifically Rule 26, producing parties are seemingly more emboldened to claims of proportionality. When it comes to claims of proportionality, we help our clients counteract those claims in several ways. First and foremost, we help them narrow the scope of what they are asking for. Sure, it isn’t that expensivee to collect and produce a few million pages of emails anymore, but the cost to review those documents for privilege and relevancy is still extremely high. The use of Technology Assisted Review is still relatively low and although growing, is likely years away from common use.
For these reasons, keep your scope narrow and reserve the right to go back and ask for more later.
If there is a claim of proportionality, one resolution method our clients have had success with is prioritization. Prioritization is particularly effective for use when identifying custodians or sources. The requesting party may ask for 50 custodians to produce their ESI. The producing party may claim a disproportionate burden or cost associated with the amount at stake and the amount producing all 50 custodians would cost. Agreeing to receive 3-5 or even 10 priority custodians initially and agreeing to readdress the remaining custodians after reviewing the priority custodians is often a fair solution to a real problem.
If the number of custodians is not the issue, but maybe the number of sources (cell phones, laptops, iPads, desktop computers, etc.) a particular custodian has is, you can also agree to prioritize data sources. For instance, you may want to begin by acquiring the custodians current cell phone data and agree to only request the four old ones he or she still has if evidence discovered during your review leads you down that path.
4. Production Format:
Whether your production is small or large, it’s always important to make sure you negotiate the form of production as early as possible. Quite literally, the format of the production that the requesting party receives can make or break a case. The difference between single page PDF images with no extracted text and no load file and a properly formatted and requested native production or TIFF image production with customized load file can literally save thousands of hours and millions of dollars to the receiving party.
The discussion around production format is almost always better done early in a case. Either negotiated in the ESI Protocol or as an attachment to your RFP, we recommend working with a party that is familiar with how you review your discovery and asking them to help properly request it.
Just as I hope that gaining some understanding of these issues will allow any fear or anger you have around ESI to evolve into confidence and comfort, be careful to allow your case and your strategy to evolve. In areas like ESI, where judges, attorneys and clients alike are often times uncomfortable, the “you signed it, you live by it” edict is alive and well. Attempting to be agreeable without waiving your future right to request additional data from new or previously unknown sources is oftentimes the key to success in a case.
So, there you have it. Those 5 key areas of eDiscovery are some of the most important things to keep in mind during your next case. No two cases are the same and there is still some art to the negotiation and RFP process when dealing with ESI. As opposed to a document that you can simply copy and paste and use indefinitely, taking a little time to understand eDiscovery so that you can use it in your favor instead of trying to avoid it will be amazingly powerful to any litigator.
Taking an area of fear because of confusion and turning it into a strength and source of confidence is a powerful and fun process. If you meet the challenge head on and remember that there are numerous resources around to assist you in your journey, I promise you it will be time well spent.
Note: This article first appeared in the Attorneys Information Exchange Group (AIEG) Voice Magazine.
Contact us to turn your eDiscovery fears into confidence.
Jeff Dreiling is the Co-Founder of Complete Legal, a boutique and customized legal solutions provider. Complete Legal serves a wide variety of clients, from solo practitioners to large corporate firms, acting as their litigation support department and providing a competitive advantage throughout the lifecycle of their legal matters. Contact Jeff to learn more.