4 Steps for Effective eDiscovery Review
It is no secret that companies and organizations are moving away from using paper files and primarily using electronic documents. These documents can be stored in many different formats and in a variety of locations. As a result, the legal world has had to adapt to eDiscovery as it rapidly replaces paper discovery documents. However, just like with any change, the transition can take some time. Adapting to the best practices for collecting, organizing and analyzing eDiscovery can involve some trial and error. To complicate matters, while trying to determine the best practices, attorneys are still bound by discovery rules and must adhere to them.
Here are four steps that attorneys should follow to help ensure efficient eDiscovery practices while following the discovery rules in their jurisdiction.
- Have a Preservation Plan
Electronically stored information (ESI) is often times vital during trials. Just like paper documents, ESI must be preserved for litigation. Therefore, it is important for companies to have well-defined preservation policies. These policies should include how and where ESI is saved, as well as a process for the routine destruction of ESI. Companies are not required to store information indefinitely, but once litigation is triggered, they are required to preserve relevant evidence. Having a standard policy makes it much easier to halt the destruction process when litigation is triggered.
- Use Effective Legal Hold Letters
It is also important to have effective legal hold letters. These letters can be sent by an adversary or they can be sent by law firms to their client in order to halt the destruction of ESI. A legal hold letter should be in writing and sent to all relevant people, not just the records custodians. It is important to be specific as to what information to preserve. The letter should not simply instruct employees to keep all relevant information without any further instruction. It should designate an employee or group of employees with whom people can speak if they have a question about whether certain ESI is relevant. Working with the client’s IT manager is also vital to identify where the information is stored and to ensure compliance with the legal hold letter.
- Utilize Predictive Coding When it Makes Sense
After the legal hold process begins, companies typically produce far more information than is necessary or relevant for a particular litigation. Someone will have to review all the ESI to determine what is relevant and to ensure privileged material is not disclosed. This can time consuming and costly when reviewing thousands of pages of ESI.
Utilizing predictive coding can be a very effective way of identifying the relevant information needed for litigation. An attorney can create a data set for the computer to search for in the ESI provided. The computer will then be able to extract the relevant documents in the ESI. The attorney can also narrow or expand the data set in order to ensure the relevant information is found. This can be very advantageous for the attorney, who may only need to review 5 – 20% of the original document set.
Like any technology, predictive coding offers pros and cons. While it can save the attorney significant time and can ultimately reduce the cost of litigation, it is very expensive and usually reserved for very large document populations.
- Methods of Reviewing ESI
After an attorney is provided ESI on a hard drive or disk, the attorney must review the information provided to prevent disclosure of privileged material and to provide the relevant documents for discovery. There are three main methods commonly used for this review process, and you should be aware of the pros and cons of each one.
The first method is to review it on the attorney’s computer. There are pros and cons to this approach. The pros are that it is convenient and it typically provides the attorney with a more complete picture of all the information provided. Documents that will be needed later for litigation can quickly be printed, but unnecessary documents don’t have to be printed, thus reducing costs. However, when attorneys review the ESI on their computers, they risk spoliation. ESI has metadata, which time stamps the document and indicates who created it. When attorneys open a document, they change the metadata of that document. This can potentially inadvertently erase key information regarding when and who created it. Also, the attorney can get lost trying to remember where certain files are on the hard drive or disk.
The second method is to print out all of the documents and review them manually. This can help attorneys in identifying all the information provided, as well as offer more control over the entire document review process. However, this method also has problems. Printing every document can be quite costly as there can be tens of thousands of pages. It also does not allow for review of metadata, which can lead to the omission of key information needed for litigation. Finally, it can also be very time consuming since the attorney is not utilizing search functionalities.
The third method is to review the ESI in a database. Contracting with a service provider to normalize the data through eDiscovery software may be the best option. The software can search and organize all the ESI. It can also extract metadata, sorting and indexing for easy searching at a later time. This makes it much simpler to review the ESI for privilege and redact any privileged or confidential information. Additionally, a database allows multiple people to review the ESI at the same time. This can be very beneficial as attorneys often times do not have a lot of time to sort through the thousands of documents prior to discovery deadlines. Ultimately this method can cost less than other methods of eDiscovery, even with the added cost of a service provider.