Three Considerations for Assessing ESI During Litigation
The discovery process can be time consuming and complicated. The amount of electronically stored information (ESI) possessed by most companies makes that task even more difficult. However, even though it may be more difficult, attorneys still have to follow the rules and provide competent representation throughout the process. For example, California recently issued an opinion outlining the steps attorneys need to take during e-discovery in order to provide competent representation. While some of the tasks stated in the opinion may be beyond an attorney’s personal expertise, there are certain tasks that attorneys should be able to perform. Technology is available to assist them in the process.
Here are three considerations for assessing ESI during litigation:
Legal Hold and Preservation of ESI
Clients that have a good retention policy in place prior to any litigation make the preservation of ESI easier. Attorneys (especially outside counsel) may not always have control over the retention policy prior to litigation, but they should consider becoming familiar with their clients’ policies when initiating the attorney-client relationship. Just as important, however, attorneys need to initiate a legal hold as soon as there is an anticipation of litigation. The timing of this milestone will vary from case to case, but when a client is put on notice of a possible lawsuit, legal holds must be initiated to ensure there is no spoliation of relevant ESI. This legal hold must be communicated to every employee that could possibly have relevant ESI. Attorneys should also ensure that employees who receive the hold understand what is expected of them.
Once the legal hold is in place, attorneys must gain knowledge of where all of the client’s ESI is stored and ensure that it is preserved in its original format. If it is not properly preserved, the metadata contained in documents may be altered. One common form of metadata that is easily manipulated is the time stamp on word processing documents. Every time a person opens the document, the time stamp can change. Often times, the original time stamp is very important to litigation. Therefore, it is important for attorneys to meet with the custodians of the various documents and ESI. Attorneys should also have knowledge of all devices that may contain relevant ESI, such as office computers, laptops, and mobile devices.
Finding Relevant Information
Once the information is preserved, the next step is to review it in order to find the relevant information for litigation. Most of the time, due to the volume of a company’s ESI, much of the preserved ESI will not be relevant for the current case. However, it can be very time consuming to look through all the information. Technology-assisted review (TAR), such as predictive coding software, can help attorneys manage this process more efficiently.
Predictive coding uses algorithms to determine the most relevant documents containing a certain set of data. Attorneys create the data set based on small sample sizes of relevant documents. The software then considers thousands of documents of ESI and flags all relevant material. This can save attorneys a large amount of time, and ultimately money, spent on manual document review. Attorneys will still need to review the relevant documents produced through predictive coding, but the quantity of documents for review can be much more manageable.
While TAR can increase document review efficiency, it can also introduce challenges. The TAR process uses machine learning based classification, which comes in a variety of forms, some of which work more effectively than others. When implementing TAR, attorneys must be knowledgeable about the capabilities of the tool they plan to use and design a workflow that is appropriate to the client and matter. For example, if discovery documents include spreadsheets, numbers, or image and audio files, they must determine whether the tool can “read” that type of data. Identifying the right approach for selecting relevant documents for training the TAR software is an even more complex challenge for attorneys. In the end, TAR review may end up costing more than manual review due to poorly implemented predictive coding protocols, review results disputes between the parties, or the desire to put large volumes of data through the system simply because it was designed to handle it.
Reviewing Relevant ESI
Once the ESI is organized into appropriate groups, it is ready to be reviewed for privileged information. Attorneys routinely agree to clawback agreements that protect against inadvertent disclosure of privileged material. However, these agreements only protect inadvertent disclosure. Whether the disclosure is inadvertent depends on the facts of the case. For example, if the court finds that the attorneys conducted a poor review of the ESI provided to the opposing party, the court may find that it was not inadvertent and therefore the privilege was waived, (see Victor Stanley v. Creative Pipe). This only serves to further emphasize the importance of having a clear and consistent practice in place for reviewing ESI.
The e-discovery process is heavily driven by technology. While attorneys should have knowledge of some of the steps during the e-discovery process, there are others that may require too much time and effort to master. If they cannot master it, they should seek the assistance of a third party who understands the entire process and can ensure that the attorneys properly complete the required tasks during e-discovery.
 Jason Krause, ABA Journal, Courts and judges embrace predictive coding, but is it really fixing discovery?, February 2015