Once upon a time, the production of information in civil litigation primarily consisted of the exchange of hard-copy, paper records. Those days are long gone.
We now are in the electronic age, and productions feature all sorts of electronic data. It is important to get it right when it comes to eDiscovery, as the downside consequences for getting it wrong can be severe.
As soon as litigation happens or is reasonably believed to be on the horizon, it is imperative to implement a "legal hold" to preserve potentially relevant data. In this way, relevant data will not be destroyed. The failure to preserve relevant data can lead to charges of spoliation of evidence. Actual spoliation can lead to court orders excluding evidence, creating negative evidentiary inferences, leading to the dismissal of claims or defenses, awarding significant monetary sanctions, and/or entering judgment against the spoliating party.
Potentially relevant data must be collected for use and production in litigation. There can be many sources of data. These include information on networks, hard drives, and hand-held devices, and can include electronic documents, emails, text messages, social media communications, and even voicemail messages. Older information stored on back-up tapes at times may have to be retrieved. Where possible, it is advantageous to reach agreements with opposing counsel in terms of sources of data, custodians of data, and search terms.
The processing of electronic data for discovery purposes can involve a number of steps. One issue to consider is whether text and metadata should be removed from native files.
Prior to production to opposing counsel, a review phase should be implemented to ensure that privileged information is not produced, and to produce only information that is responsive to discovery requests. At times, sensitive, confidential and/or trade secret information will need to be treated with different levels of protection. It is wise to negotiate a mutually acceptable protective order with opposing counsel. There are different types of tools that can be utilized to help in the review process.
The production itself likely should be based on agreed-upon specifications with opposing counsel. Frequently, the production is loaded onto a document review platform.
There are many other issues and nuances when it comes to electronic discovery. A suitable New Year's resolution for companies is to get their eDiscovery houses in order. They should consult with counsel skilled in this area to move forward, if they have not done so already.
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