Every case is unique with respect to the management of electronically stored information (ESI). The explosion of electronic data can be overwhelming, and in many situations, the need to locate the relevant data in a case without manually reviewing every single document is crucial. Realistically, out of the potential half-million plus pages of documents that can be produced to attorneys by their client in the course of litigation, only a fraction of those documents contain the most relevant and responsive information to support and defend your case. Since the discovery phase of litigation is an expensive component, it is important to perform these tasks as cost-effectively as possible. By clearly outlining the E-Discovery process, identifying the benefits, and warning of the potential pitfalls, clients will be more likely to understand the costs surrounding the handling of ESI and why defensible methodologies need to be followed.
At the beginning of any new project, the litigation team and client must have a clear understanding of the scope and parameters of the project to effectively accomplish the specific end goal. Does the litigation team just need to review the client’s data? If they have to produce the relevant data as well, in what format(s) will the documents be produced? To whom will you need to produce/share the discoverable information: opposing counsel, co-counsel, third parties, etc.? What is the timeframe with which this work needs to be completed? The answers to these questions allow you to research solutions that will be the most efficient and cost-effective for your client. Furthermore, answers to these questions will help ensure that the outcome will be successful and that your client will be happy.
The client needs to have a comprehensive understanding of the overall project, including what may be expected from him/her internally. Documents produced from the client come from many custodians and various sources such as the client’s servers, office and home computers and tablets, smart phones, e-mail accounts, voice mails, text messages, facsimiles, CDs, DVDs, memory sticks, external drives, and hard copy versions of documents and communications. You will need to determine if the client has an IT staff that is equipped to collect the data and have it processed in such a fashion that will not spoliate any of the metadata. If your client is not in a position to do this, qualified forensic specialists will need to assist with the data collection.
The nature of electronically stored information requires that it be dealt with in a way that preserves all of the characteristics associated with each file. Attorneys must have the ability to quickly collect the potentially relevant data without causing it to be spoliated; and be able to have a good idea of what percentage of the entire collection is actually potentially relevant. In order to reduce the volume of data to be reviewed, there are many techniques that can be utilized, including keyword searching to flag potentially relevant and privileged documents, date filtering, deduplication; near-deduplication; grouping e-mail threads; data sampling; concept clustering; and predictive coding. This method uses sophisticated algorithms to enable the computer to determine relevance, based on interaction with a human reviewer. This special handling often involves the use of vendors that are experts in the areas of data preservation, collection, analysis, and authentication. Vendors work closely with attorneys to identify the proper course of action to handle the ESI in each matter but rarely have the opportunity to speak directly to the client. Therefore, the attorney must not only understand, but also be able to convey the process to his/her client. Accomplishing these cost-efficient steps will simplify how to manage your client’s production and reduce the amount of time and manpower needed for timely review of the responsive documents.
Ask your client if he/she wishes to be included with the vendor selection process. The client may have specific requirements vendors must comply with based on the nature of the data and information provided. The client may also have a preferred vendor from whom he/she receives preferred rates. You should also provide your client with a Project Budget. The budget may need to be modified over time, but it is best to let the client know the costs he/she is facing before the first invoice arrives. The costs associated with each phase of the ESI processing may initially cause some concern for the client but he/she will be more likely to approve the costs if he/she understands that the methodologies being utilized will save money.
The volume and complexity of electronic data has increased the risk and exposure faced by clients and the lawyers that represent them. Judges have been known to issue sanctions against the client (and not singularly the firm representing them) for egregious failures in the methodologies applied to the E-discovery process. Clients should be educated about adhering to defensible E-Discovery processes in order to avoid sanctions; which have been on the rise as judges learn more about electronic data document retention and recovery.
When evaluating any project, you need to manage the “triple constraint” variables: Cost, Time, and Scope. Since these variables are inextricably coupled, you can only select any TWO at any given time. If you’re asked to increase the scope of the project, you’ll then be required to use additional resources (cost) and/or you’ll need to be given more time in which to complete the project. It’s important to make the effort early on, through the use of a Project Description document or some similar vehicle, to define the project and to build consensus among the litigation team and client about what it is and how it will be managed.
As the project continues, you will need to monitor its progress based on milestones that have been initially established. It is also important to create metrics for review rates and monitor the output regularly so that you can provide reports to your stakeholders on a consistent basis. Approaching each project utilizing these guidelines allows you to have a very high success rate in meeting your client’s expectations.