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Doug Austin

eDiscovery Trends: First Pass Review – Fuzzy Searching Your Opponent’s Data
 

Even those of us at eDiscoveryDaily have to take an occasional vacation; however, instead of “going dark” for the week, we thought we would republish a post series from the early days of the blog (when we didn’t have many readers yet)  So chances are, you haven’t seen these posts yet!  Enjoy!

Tuesday, we talked about the use of First Pass Review (FPR) applications (such as FirstPass®, powered by Venio FPR™) to not only conduct first pass review of your own collection, but also to analyze your opponent’s ESI production.  One way to analyze that data is through synonym searching to find variations of your search terms to increase the possibility of finding the terminology used by your opponents.

Fuzzy Searching

Another type of analysis is the use of fuzzy searching.  Attorneys know what terms they’re looking for, but those terms may not often be spelled correctly.  Also, opposing counsel may produce a number of image only files that require Optical Character Recognition (OCR), which is usually not 100% accurate.

FirstPass supports "fuzzy" searching, which is a mechanism by finding alternate words that are close in spelling to the word you're looking for (usually one or two characters off).  FirstPass will display all of the words – in the collection – close to the word you’re looking for, so if you’re looking for the term “petroleum”, you can find variations such as “peroleum”, “petoleum” or even “petroleom” – misspellings or OCR errors that could be relevant.  Then, simply select the variations you wish to include in the search.  Fuzzy searching is the best way to broaden your search to include potential misspellings and OCR errors and FirstPass provides a terrific capability to select those variations to review additional potential “hits” in your collection.

Tomorrow, I’ll talk about the use of domain categorization to quickly identify potential inadvertent disclosures and weed out non-responsive files produced by your opponent, based on the domain of the communicators.  Hasta la vista, baby! J

In the meantime, what do you think?  Have you used fuzzy searching to find misspellings or OCR errors in an opponent’s produced ESI?  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 Discovery. eDiscoveryDaily is made available by CloudNine Discovery solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscoveryDaily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

eDiscovery Trends: First Pass Review – Synonym Searching Your Opponent’s Data
 

Even those of us at eDiscoveryDaily have to take an occasional vacation; however, instead of “going dark” for the week, we thought we would republish a post series from the early days of the blog (when we didn’t have many readers yet)  So chances are, you haven’t seen these posts yet!  Enjoy!

Yesterday, we talked about the use of First Pass Review (FPR) applications (such as FirstPass®, powered by Venio FPR™) to not only conduct first pass review of your own collection, but also to analyze your opponent’s ESI production.  One way to analyze that data is through email analytics to see the communication patterns graphically to identify key parties for deposition purposes and look for potential production omissions.

Synonym Searching

Another type of analysis is the use of synonym searching.  Attorneys understand the key terminology their client uses, but they often don’t know the terminology their client’s opposition uses because they haven’t interviewed the opposition’s custodians.  In a product defect case, the opposition may refer to admitted design or construction “mistakes” in their product or process as “flaws”, “errors”, “goofs” or even “flubs”.  With FirstPass, you can enter your search term into the synonym searching section of the application and it will provide a list of synonyms (with hit counts of each, if selected).  Then, you can simply select the synonyms you wish to include in the search.  As a result, FirstPass identifies synonyms of your search terms to broaden the scope and catch key “hits” that could be the “smoking gun” in the case.

Thursday, I’ll talk about the use of fuzzy searching to find misspellings that may be commonly used by your opponent or errors resulting from Optical Character Recognition (OCR) of any image-only files that they produce.  Stay tuned!  🙂

In the meantime, what do you think?  Have you used synonym searching to identify variations on terms in an opponent’s produced ESI?  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 Discovery. eDiscoveryDaily is made available by CloudNine Discovery solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscoveryDaily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

Happy Independence Day from all of us at eDiscovery Daily and CloudNine Discovery!

eDiscovery Trends: First Pass Review – of Your Opponent’s Data
 

Even those of us at eDiscoveryDaily have to take an occasional vacation; however, instead of “going dark” for the week, we thought we would republish a post series from the early days of the blog (when we didn’t have many readers yet)  So chances are, you haven’t seen these posts yet!  Enjoy!

In the past few years, applications that support Early Case Assessment (ECA) (or Early Data Assessment, as many prefer to call it) and First Pass Review (FPR) of ESI have become widely popular in eDiscovery as the analytical and culling benefits of conducting FPR have become obvious.  The benefit of these FPR tools to analyze and cull their ESI before conducting attorney review and producing relevant files has become increasingly clear.  But, nobody seems to talk about what these tools can do with opponent’s produced ESI.

Less Resources to Understand Data Produced to You

In eDiscovery, attorneys typically develop a reasonably in-depth understanding of their collection.  They know who the custodians are, have a chance to interview those custodians and develop a good knowledge of standard operating procedures and terminology of their client to effectively retrieve responsive ESI.  However, that same knowledge isn’t present when reviewing opponent’s data.  Unless they are deposed, the opposition’s custodians aren’t interviewed and where the data originated is often unclear.  The only source of information is the data itself, which requires in-depth analysis.  An FPR application like FirstPass®, powered by Venio FPR™, can make a significant difference in conducting that analysis – provided that you request a native production from your opponent, which is vital to being able to perform that in-depth analysis.

Email Analytics

The ability to see the communication patterns graphically – to identify the parties involved, with whom they communicated and how frequently – is a significant benefit to understanding the data received.  FirstPass provides email analytics to understand the parties involved and potentially identify other key opponent individuals to depose in the case.  Dedupe capabilities enable quick comparison against your production to confirm if the opposition has possibly withheld key emails between opposing parties.  FirstPass also provides an email timeline to enable you to determine whether any gaps exist in the opponent’s production.

Message Threading

The ability to view message threads for emails (which Microsoft Outlook® tracks), can also be a useful tool as it enables you to see the entire thread “tree” of a conversation, including any side discussions that break off from the original discussion.  Because Outlook tracks those message threads, any missing emails are identified with placeholders.  Those could be emails your opponent has withheld, so the ability to identify those quickly and address with opposing counsel (or with the court, if necessary) is key to evaluating the completeness of the production.

Tomorrow, I’ll talk about the use of synonym searching to find variations of your search terms that may be common terminology of your opponent.  Same bat time, same bat channel! 🙂

In the meantime, what do you think?  Have you used email analytics to analyze an opponent’s produced ESI?  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 Discovery. eDiscoveryDaily is made available by CloudNine Discovery solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscoveryDaily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

eDiscovery Trends: Scanning May No Longer Be Cool, But it’s Still Necessary
 

Frankly, I thought the fax machine would have been retired by now.  So many documents are generated electronically these days that I would have expected that most businesses would not only accept contracts and other documents via email but also no longer support fax receipt of those same documents.  But, many business not only still receive faxes, some still only accept faxes for key documents (or require you to hand deliver).  Progress is slow.

Likewise, most documents generated these days (as much as 99%) are never printed.  Hence, discovery has often become predominantly electronic discovery, as the documents are typically electronic.  Yet, I’m still surprised how many cases still have hard copy documents that require scanning and we still see a number of projects that have several boxes of documents that need to be scanned for discovery purposes.  If you still encounter hard copy documents in your discovery collections, here are some factors to consider if you’re going to scan them or hire a vendor to do so:

  • Document Preparation and Reassembly: To prepare documents for scanning, fasteners (staples, paper clips, etc.) must generally be removed.  Slip sheets are also often inserted in between documents with bar codes to tell the scanning software where the document breaks are – in some cases, the slip sheets are sophisticated enough to track master/attachment groups of documents. Reassembly involves returning the document collection to its original condition after scanning.
  • Deskew, Despeckle and Orientation Check: When scanning, you want to get the best quality scanned document possible not only because it’s easier and clearer to review, but also because it affects the quality of the Optical Character Recognition (OCR) process used to capture words for indexing and searching.  You don’t want the image to be skewed, or have a lot of speckles or be in the wrong orientation (e.g., portrait when it should be landscape).  The poorer quality of the image, the poorer the OCR.  Of course, some original documents are poor quality and difficult to read, so you can only do so much to make the resulting image readable.  But, you want to ensure the best quality possible.
  • Quality Assurance: In addition to any automated checks performed by the software, a manual double-check is also a good idea.  Any documents with issues (such as those described above) should be investigated to determine whether a second scan pass can yield better results.
  • Optical Character Recognition: It’s important to note that, without OCR, an image is just a picture and the words on the page cannot be searched.  Lack of OCR could cause you to miss important documents for discovery.  Because OCR is not an exact science, you want to use an application that supports “fuzzy” searching of OCR text to broaden search results to include other possible “hits” for the desired search terms.
  • Bates Numbering and Endorsing: Bates numbers used to be applied by a Bates “stamp”.  Later on, pre-printed Bates labels became popular.  Today, Bates numbers and endorsements (such as “Confidential” stamps) are typically applied electronically and are either “burned in” to the image (so that they cannot be removed) or “overlaid” (so that they can be removed – this is done in some cases when producing the same document in multiple cases with different Bates numbers).  It’s important to consider your requirements when selecting a method.
  • Single or Multi Page Images:  When creating TIFF files, you can create single page or multi-page TIFF files (multi-page files are usually one file per document).  Some review applications prefer one or the other, so it’s important to know your review software preferences.  PDF files are typically multi-page.

Those are just some of the considerations when scanning hard copy documents.  When using a vendor to scan documents, it’s important to understand how they address each of the areas above.

So, what do you think?  Do you still have hard copy documents to scan in most of your cases?  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 Discovery. eDiscoveryDaily is made available by CloudNine Discovery solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscoveryDaily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

eDiscovery Best Practices: When Litigation Hits, The First 7 to 10 Days is Critical

When a case is filed, several activities must be completed within a short period of time (often as soon as the first seven to ten days after filing) to enable you to assess the scope of the case, where the key electronically stored information (ESI) is located and whether to proceed with the case or attempt to settle with opposing counsel.  Here are several of the key early activities that can assist in deciding whether to litigate or settle the case.

Activities:

  • Create List of Key Employees Most Likely to have Documents Relevant to the Litigation: To estimate the scope of the case, it’s important to begin to prepare the list of key employees that may have potentially responsive data.  Information such as name, title, eMail address, phone number, office location and where information for each is stored on the network is important to be able to proceed quickly when issuing hold notices and collecting their data.
  • Issue Litigation Hold Notice and Track Results: The duty to preserve begins when you anticipate litigation; however, if litigation could not be anticipated prior to the filing of the case, it is certainly clear once the case if filed that the duty to preserve has begun.  Hold notices must be issued ASAP to all parties that may have potentially responsive data.  Once the hold is issued, you need to track and follow up to ensure compliance.  Here are a couple of recent posts regarding issuing hold notices and tracking responses.
  • Interview Key Employees: As quickly as possible, interview key employees to identify potential locations of responsive data in their possession as well as other individuals they can identify that may also have responsive data so that those individuals can receive the hold notice and be interviewed.
  • Interview Key Department Representatives: Certain departments, such as IT, Records or Human Resources, may have specific data responsive to the case.  They may also have certain processes in place for regular destruction of “expired” data, so it’s important to interview them to identify potentially responsive sources of data and stop routine destruction of data subject to litigation hold.
  • Inventory Sources and Volume of Potentially Relevant Documents: Potentially responsive data can be located in a variety of sources, including: shared servers, eMail servers, employee workstations, employee home computers, employee mobile devices, portable storage media (including CDs, DVDs and portable hard drives), active paper files, archived paper files and third-party sources (consultants and contractors, including cloud storage providers).  Hopefully, the organization already has created a data map before litigation to identify the location of sources of information to facilitate that process.  It’s important to get a high level sense of the total population to begin to estimate the effort required for discovery.
  • Plan Data Collection Methodology: Determining how each source of data is to be collected also affects the cost of the litigation.  Are you using internal resources, outside counsel or a litigation support vendor?  Will the data be collected via an automated collection system or manually?  Will employees “self-collect” any of their own data?  Answers to these questions will impact the scope and cost of not only the collection effort, but the entire discovery effort.

These activities can result in creating a data map of potentially responsive information and a “probable cost of discovery” spreadsheet (based on initial estimated scope compared to past cases at the same stage) that will help in determining whether to proceed to litigate the case or attempt to settle with the other side.

So, what do you think?  How quickly do you decide whether to litigate or settle?  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 Discovery. eDiscoveryDaily is made available by CloudNine Discovery solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscoveryDaily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

eDiscovery Best Practices: Judge Facciola Discusses Competency and Ethics
 

The American Bar Association (ABA) Model Rules of Professional Conduct (Model Rules) require that an attorney possess and demonstrate a certain requisite level of knowledge in order to be considered competent to handle a given matter.  Specifically, Model Rule 1.1 states that, "[a] lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation."

As noted in Law Technology News, eDiscovery vendor iConect hosted a free webinar last week entitled "Duty of Competency and E-Discovery", in which Joshua Gilliland, author of Bow Tie Law's Blog and founder of legal iPad app developer Majority Opinion, discussed ethics and eDiscovery with Magistrate Judge John M. Facciola of the United States District Court for the District of Columbia.  The “sheriff” speaks!

The LTN article notes that, according to Judge Facciola, the requirement for competency now requires "a fundamental understanding of the way information is produced." This entails: 1) some understanding of the information systems you and your client are relying upon; 2) knowing your own limitations; and 3) if you don't understand, have someone at your side, i.e. an expert, who does, he declared.

With regard to ethics and eDiscovery, Judge Facciola gave an example of what might occur in a 26(f) meet and confer, which he called "the linchpin" of the 2006 amendments to the Federal Rules of Civil Procedure. Two lawyers are meeting in discovery in a case involving pharmaceuticals. One lawyer knows that the drug Pharmadine is spelled with an "e" not an "a" but doesn't correct the opposing party even though he knows it will disrupt his opponent's search, prolonging the discovery period by six months. Labeling this the difference between a material fact and not speaking to correct a mistake, Facciola says there's "no ethical rule" for this, but, ultimately that lawyer is going to have to go before a judge and account for those extra six months. Model rules regulate a profession's ethics, they don't influence a judge's decision. "Ethics rules are not a safe harbor," Facciola warned.

For more observations from Judge Facciola topics such as cooperation, preservation and search methodology, click on this link to access the article from Law Technology News.  And, for more on the subject of competency and ethics as it relates to eDiscovery, check out this post and this post from our archives.

So, what do you think?  Are you addressing ethics and competency requirements in your firm as it relates to eDiscovery?  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 Discovery. eDiscoveryDaily is made available by CloudNine Discovery solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscoveryDaily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

eDiscovery Milestones: 100,000 Visits!
 

While it may not be “billions and billions served” like McDonalds nor quite as electrifying as 1.21 jigawatts, we’re proud to announce that yesterday eDiscoveryDaily reached the 100,000 visit milestone!  As of this morning, we have had 100,160 visits to the site (reading 447 posts).  On behalf of everyone at CloudNine Discovery who has worked on the blog over the last 21+ months, thanks to all of you who read the blog every day!  In addition, thanks to the other publications that have picked up and either linked to or republished our posts!  We really appreciate the support!  Now, on to 200,000!

And, as always, 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 Discovery. eDiscoveryDaily is made available by CloudNine Discovery solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscoveryDaily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

eDiscovery Case Law: “Naked” Assertions of Spoliation Are Not Enough to Grant Spoliation Claims
 

In Grabenstein v. Arrow Electronics, Inc., No. 10-cv-02348-MSK-KLM, 2012 U.S. Dist. LEXIS 56204 (D. Colo. Apr.23, 2012), Colorado Magistrate Judge Kristen L. Mix denied the plaintiff’s motion for sanctions, finding that their claims of spoliation were based on “naked” assertions that relevant eMails must exist even though the plaintiff could not demonstrate that such other eMails do or did exist.  The motion was also denied because the plaintiff could not establish when the defendant had deleted certain eMail messages, thereby failing to prove claims that the defendant violated its duty to preserve electronic evidence. Judge Mix noted that sanctions are not justified when documents are destroyed in good faith pursuant to a reasonable records-retention policy, if that’s prior to the duty to preserve such documents.

In this employment discrimination case, the plaintiff filed a motion for sanctions, claiming that the defendant failed to retain all eMail messages exchanged internally as well as between the defendant and the plaintiff’s insurer, MetLife, regarding the plaintiff’s short-term disability leave.

Defining the requirement for a finding of spoliation, Judge Mix stated, “A spoliation sanction is proper where (1) a party has a duty to preserve evidence because it knew, or should have known, that litigation was imminent, and (2) the adverse party was prejudiced by the destruction of the evidence.”

Here, Judge Mix found the plaintiff’s contentions that relevant eMails were missing to be “fatally unclear” since neither the plaintiff nor the defendant knew whether other such eMails existed. The plaintiff was also unable to provide any verification that MetLife’s log of relevant eMails exchanged with the defendant was incomplete or had been altered. As a result, Judge Mix was “unable to find that the e-mails produced by MetLife are incomplete and that Defendant destroyed the only complete versions of those e-mails”.

There were some eMails which the defendant admittedly did not preserve.  As to whether those eMails had been deleted after the duty to preserve them had arisen, Judge Mix discussed the standard under the spoliation doctrine: “‘[I]n most cases, the duty to preserve evidence is triggered by the filing of a lawsuit. However, the obligation to preserve evidence may arise even earlier if a party has notice that future litigation is likely.’” Here, Judge Mix found that the plaintiff had not produced any evidence that the defendant should have anticipated litigation prior to receiving actual notice of the filing of the lawsuit. The plaintiff was also unable to show any evidence at all when the defendant had destroyed the eMails that would rebut the defendant’s attorney’s statement that the eMails were deleted prior to the start of litigation. As a result, the plaintiff did not meet its burden of establishing that the defendant had violated its duty to preserve.

While finding that the defendants had violated a records retention policy regulation applicable to the Equal Employment Opportunity Commission when it deleted the eMails, Judge Mix found that it had not done so in bad faith, and it had been simply following its own eMail retention policy in the normal course of business. Accordingly, the plaintiff’s motion for sanctions was denied.

So, what do you think?  Was the ruling fair or should the defendants have been sanctioned for the deleted eMails?  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 Discovery. eDiscoveryDaily is made available by CloudNine Discovery solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscoveryDaily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

eDiscovery Trends: Costs, Outside Counsel and Vendor Performance Chief Among GC Concerns
 

A survey was recently conducted by eDiscovery Solutions Group (eDSG) that of Global 250 General Counsel on various aspects of eDiscovery processes and concerns regarding eDiscovery.  The results were summed up in a post in the blog, The eDiscovery Paradigm Shift, written by Charles Skamser.  With a little over half (127 out of 250 organizations or 51%) responding, the post noted some interesting findings with regard to how organizations handle various eDiscovery tasks and their concerns regarding the process overall.

eDiscovery Services

According to the survey, organizations are (not surprisingly) still highly dependent on outside counsel for eDiscovery services, with over half of the organizations (51%) relying on them for eDiscovery collections and Early Case Assessment (ECA) services and 43% relying on them for document review services.  Organizations rely on third party forensics groups 35% of the time for eDiscovery collections and rely on Legal Process Outsource (LPO) providers 29% of the time for ECA services and 43% of the time for document review services.  Organizations handle ECA internally 20% of the time and handle collection and review 13% of the time each.

The author notes surprise that 51% of the respondents identified outside counsel for their ECA and wondered if there was confusion by respondents about the term “LPO” and whether it applied to litigation service providers.  It’s also possible that the term “ECA” might have been confusing as well – to many in the legal profession it means estimating risk (in terms of time and cost to proceed with the case instead of settling) and not analysis of the data.

Frustrations and Pet Peeves

eDSG also asked the respondents about their top frustrations and top pet peeves over the past 12 months (respondents could select more than one in each category).  Top frustrations were “Cost of eDiscovery not declining as rapidly as expected” (95%) and “Increase in the Amount of ESI” (90%).  Also notable are the respondents that are frustrated with “Dealing with eDiscovery Software Vendors” (80%) and “Outside Counsel Not Providing Adequate Support for eDiscovery Requirements” (75%).  Sounds like most of the respondents have multiple frustrations!

Top pet peeves were “Outside Counsel and LPOs Knowingly Low Balling Cost Estimates” (80%) and “eDiscovery Cost Overruns”, “LPOs dropping the ball on eDiscovery Projects” and “Anyone that states that litigation in now all about technology” (all at 75%).  Also, 65% of respondents find eDiscovery Vendor sales people “annoying”.  🙂

Concerns

With regard to the next 12 months, eDSG asked the respondents about their top concerns going forward (again, respondents could select more than one in each category).  Top concerns were “Managing the Cost of eDiscovery” (a perfect 100%) and “Collaboration between internal stakeholders” (91%).  Other concerns included “Education and Training of Staff ” (79%) and “Understanding the Impact of Social Media” (75%).

Summary

A link to the blog post with more information and survey results is available here.  Based on the responses, most organizations outsource their eDiscovery activities to either outside counsel and litigation support vendors; yet, many of them don’t appear to be happy with the results their outsource providers are giving them.  It sounds like there’s lots of room for improvement.  The cost of eDiscovery appears to be the biggest frustration and the biggest concern of in-house counsel personnel going forward.

So, what do you think?  Did any of these survey results surprise you?  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 Discovery. eDiscoveryDaily is made available by CloudNine Discovery solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscoveryDaily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

eDiscovery Best Practices: Documentation is Key to a Successful Discovery Effort
 

We like to point out good articles about eDiscovery on this blog to keep our readers aware of trends and best practices.  I recently read an article on InsideCounsel titled E-discovery: Memorializing the e-discovery process, written by Alvin Lindsay, which had some good specific examples of where good documentation is important to prevent sanctions and save litigation costs.

Litigation Holds

The author notes that, since the Zubulake opinions issued by Judge Shira Scheindlin in 2003 and 2004, 1) most jurisdictions have come to expect that parties must issue a litigation hold “as soon as litigation becomes reasonably foreseeable”, and 2) “oral” litigation holds are unlikely to be sufficient since the same Judge Scheindlin noted in Pension Committee that failure to issue a “written” litigation hold constitutes “gross negligence”.  His advice: “make sure the litigation hold is in writing, and includes at minimum the date of issue, the recipients and the scope of preservation”.  IT personnel responsible for deleting “expired” data (outside of retention policies) also need to receive litigation hold documentation; in fact, “it can be a good idea to provide a separate written notice order just for them”.  Re-issuing the hold notices periodically is important because, well, people forget if they’re not reminded.  For previous posts on the subject of litigation holds, click here and here.

Retention Policies and Data Maps

Among the considerations for documentation here are the actual retention and destruction policies, system-wide backup procedures and “actual (as opposed to theoretical) implementation of the firm’s recycle policy”, as well as documentation of discussions with any personnel regarding same.  A data map provides a guide for legal and IT to the location of data throughout the company and important information about that data, such as the business units, processes and technology responsible for maintaining the data, as well as retention periods for that data.  The author notes that many organizations “don’t keep data maps in the ordinary course of business, so outside counsel may have to create one to truly understand their client’s data retention architecture.”  Creating a data map is impossible for outside counsel without involvement and assistance at several levels within the organization, so it’s truly a group effort and best done before litigation strikes.  For previous posts on the subject of data maps, click here and here.

Conferences with Opposing Counsel

The author discusses the importance of documenting the nature and scope of preservation and production and sums up the importance quite effectively by stating: “If opposing parties who are made aware of limitations early on do not object in a timely fashion to what a producing party says it will do, courts will be more likely to invoke the doctrines of waiver and estoppel when those same parties come to complain of supposed production infirmities on the eve of trial.”  So, the benefits of documenting those limitations early on are clear.

Collecting, Culling and Sampling

Chain of custody documentation (as well as a through written explanation of the collection process) is important to demonstrating integrity of the data being collected.  If you collect at a broad level (as many do), then you need to cull through effective searching to identify potentially responsive ESI.  Documenting the approach for searching as well as the searches themselves is key to a defensible searching and culling process (it helps when you use an application, like FirstPass®, powered by Venio FPR™, that keeps a history of all searches performed).  As we’ve noted before, sampling enables effective testing and refinement of searches and aids in the defense of the overall search approach.

Quality Control

And, of course, documenting all materials and mechanisms used to provide quality assurance and control (such as “materials provided to and used to train the document reviewers, as well as the results of QC checks for each reviewer”) make it easier to defend your approach and even “clawback” privileged documents if you can show that your approach was sound.  Mistakes happen, even with the best of approaches.

So, what do you think?  These are some examples of important documentation of the eDiscovery process – can you think of others?  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 Discovery. eDiscoveryDaily is made available by CloudNine Discovery solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscoveryDaily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.