United States: Ten Things You Need To Know About eDiscovery

Last Updated: January 19 2018
Article by Melody B. Lynch

Previously published in American Bar Association, Section of Litigation Woman Advocate

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Electronic discovery can be daunting for attorneys of all ages and stages, but certainly for older lawyers who did not grow up with technology at their fingertips. As a young lawyer, you are well equipped to grasp the eDiscovery process and to make significant contributions to your law firm through this expertise. In my first seven years of practicing law, I have leveraged my understanding of technology and my knowledge of eDiscovery to work on some of the largest and most complex cases handled by our firm, covering millions of records and terabytes of data. 

I have compiled a list of the 10 things that every lawyer, but especially young lawyers, should know about eDiscovery.

All litigation, even the smallest of cases, involves eDiscovery.
The vast majority of relevant data for litigation is now stored electronically, whether that means Microsoft Word documents, emails stored in Microsoft Outlook, Facebook messages, or text messages. Over 100 billion emails are sent and received each day. Therefore, whether you are handling a complex commercial dispute or a smaller landlord-tenant case, every lawsuit involves eDiscovery at some level.

The Federal Rules of Civil Procedure (and many state court rules) cover eDiscovery and require litigators and litigants to deal with it as a regular part of litigation. 
The Federal Rules of Civil Procedure were amended in 2006 to include eDiscovery and the requirement that the parties have a case management conference to discuss electronically stored information (ESI). Many states have implemented procedural rules similarly requiring parties to discuss eDiscovery. For example, the Florida Rules of Civil Procedure were amended as of September 1, 2012, to address ESI. Moreover, while the Federal Rules do not expressly provide for cost-shifting, some federal courts have placed discovery costs for ESI on the requesting party, when the producing party has demonstrated that the information is not reasonably accessible because of undue burden or cost. Keep this in mind if eDiscovery requests become unwieldy.

Know the basic terminology of eDiscovery.
Part of demystifying eDiscovery is understanding the terminology associated with it. There are a few key terms that you need to know to converse about eDiscovery comfortably. The first term that you need to know is ESI. Electronically stored information includes email, web pages, word processing files, audio and video files, computer databases, and the like. Another term that you should know is metadata. Metadata refers to data that describes other data. For example, if I look at a document's metadata, I can determine things like who created the document, when the document was created, and when the document was altered or deleted. The next term you should know when you get ready to produce ESI is "load file." A load file is a computer file that instructs a review software package how to import data into a database. You will also want to know whether the files you are receiving have undergone the OCR process. OCR means optical character recognition and is the method of converting images so that they are text searchable. This can be critical when you are trying to find that "hot document," or needle in the proverbial haystack.

Determine the relevant universe of your client's ESI before the first request for production hits your desk.
One common mistake is waiting for a request for production before speaking to your client about the relevant universe of data. Data may be stored locally on servers, in the cloud, or on employees' personal tablets or computers, among other possibilities. Hardcopy documents also must be considered. They may be stored at a business, home, warehouse, or offsite storage facility. If you can identify the universe of potentially relevant documents, you can design an organized approach to secure those records and allow ample time to collect, review, and produce relevant documents when that request for production arrives.

Issue litigation-hold letters to custodians.
At the onset of litigation, you and your client should identify all relevant custodians who may possess or maintain relevant ESI. All of these individuals should receive a litigation-hold letter that alerts them to immediately cease any routine document destruction until further notice. This instruction should come in writing, from you. I like to include an acknowledgement section, which provides further proof that you have identified the relevant individuals and they have taken measures to maintain all potentially relevant documents during the pendency of the litigation (and any appeals). Do not wait to issue a litigation-hold letter until you receive a discovery request. Litigation-hold letters should be promptly issued once litigation is reasonably foreseeable, but certainly no later than when a demand letter is served.

Send litigation-hold warmer letters at frequent but reasonable intervals.
So you have sent a litigation-hold letter—task complete, right? Not so fast! Depending on the type of case that you are handling, including the complexity of the case, how long the case has been pending, the number of custodians, and other factors, you should issue litigation-hold warmer letters. A litigation-hold warmer letter is essentially a reminder to the custodians that the litigation remains pending and that their obligation to maintain all potentially relevant documents is ongoing. Sometimes custodians think that if they haven't heard from the lawyers in a while that it is probably permissible to clean out their inbox or delete those old files, or they simply forget. This is a sure-fire way to end up with a spoliation claim. It is easily avoidable if you establish a timeline to issue warmer reminder letters at frequent but reasonable intervals.

Enter into a production agreement at the onset of litigation.
Waiting to determine production specifics until the time of production will cause your client additional legal fees and will give you headaches! I recommend reaching a production agreement between all parties at the outset of litigation. This agreement should cover things like confidentiality markings on documents, the format of electronic production, clawback procedures, and the treatment of privileged materials. For a large case with a lot of ESI, I also like to include the fields and metadata to be produced in the format of a production section so that you will receive information such as the custodian of the record; the family relationship between the documents (i.e., emails and attachments); the sender and recipient information; the file name; the file extension; the date created; the date modified; and the file path. You also can include information about the use, protection, and destruction of documents produced. For example, at the conclusion of the litigation, do you want the other side to return the documents produced or can they be kept? Confidentiality or trade secret issues may guide you in this decision.

Update your definitions in your discovery requests.
Be proactive about the discovery requests you propound to the opposing party. Make sure to update your definitions to include all forms of ESI such as email, text messages, and social media posts. Cases are won and lost on gaining this valuable information, but you will never get this information if you don't ask for it or if your definitions are so narrow that they exclude relevant ESI!

What is proportionality and how does it apply to my case?
Proportionality is the process whereby you right-size your eDiscovery process to fit smaller cases. You should adjust your strategy by narrowing the types of ESI that you must preserve, collect, and produce during the litigation. You also can conduct abbreviated discovery on key issues or from key custodians, and then have a settlement conference, before you commence a full-blown discovery battle. Proposed amendments to the Federal Rules of Civil Procedure will provide more guidance on proportionality.

What review tool should I use, if any?
Once you collect the potentially relevant documents or receive production from the other side, you should determine which review tool to use for your particular case. There are two major types of document review. The first type is linear, or document-by-document review, which includes keywords and sampling. The second type is TAR, or technology-assisted-review, sometimes referred to as predictive coding or artificial intelligence. 

Once you understand these 10 concepts, you are ready to tackle eDiscovery head on. Mastery of the eDiscovery workflows and processes can make an associate an invaluable part of the litigation team. The senior partners at your firm will thank you.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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