E-Discovery
A Survival Guide for New Lawyers, Part 2
David R. Cohen and Lynn Reilly
David Cohen is a partner in the Pittsburgh office of Kirkpatrick & Lockhart Preston Gates Ellis and co-chair of the firm’s e-Discovery Analysis & Technology (e-DAT) Practice Group. Lynn Reilly is a staff attorney in the firm’s Seattle office and e-DAT Group. Contact them at david.cohen@klgates.com and lynn.reilly@klgates.com.
You have been assigned to a major new litigation matter. The senior partner has just informed you that she is entrusting you with the client’s document collection and production, including e-discovery. What do you do now? First you get past the panic, take a deep breath, assess the project, and gather the expertise needed to address it. (For more on these points, see part one of E-Discovery in the July issue of TYL or online at www.abanet.org/yld/tyl.shtml.) The next steps are:
5. Understand E-Discovery. Regardless of your firm’s resources, learn as much as you can as fast as you can about e-discovery. For starters, here are a few terms you need to know:
  • ESI is electronically stored information.
  • A gigabyte (or Gb) of data is a fairly large quantity of data—a gigabyte of “native” ESI can translate to 50,000–75,000 pages or about 20–30 standard boxes. A gigabyte is 1024 megabytes. A terabyte is 1,024 gigabytes. You can guess what a petabyte is (it has nothing to do with dog attacks), and you do not want to have to deal with it.
  • Native documents are documents in their original file formats, e.g., Word, Excel, and PowerPoint. Production in native format is not typically advisable because of the tracking difficulties and alteration risk.
  • TIFF is tagged image file format, a common format for producing ESI. Native documents can be converted to TIFFs to standardize them, allow automated numbering for control purposes, and reduce the risks of alteration. Although there can be benefits to reviewing in native format, most productions occur in TIFF, or occasionally in PDF (portable document format).
  • Metadata is automatically tracked information about documents. The term refers to both innocuous, objective information, such as authors, dates, and recipients, and “hidden” metadata that can reveal earlier versions, notes, formulas, and other automatically tracked information that may not be visible on the printed page.
Beyond knowing the language, get the latest e-discovery primer from your firm’s library. Learn online through free Web sites and blogs, such as www.ediscoverylaw.com. Sign up for next week’s e-discovery CLE seminar (there is at least one per week somewhere!) or watch some of the recorded lectures available on the Web.
6. Make a preliminary plan. Once you know the basics of the case and the applicable rules, it is time to devise a preliminary plan. First identify potential record custodians, as well as “noncustodial” information sources, such as shared servers or databases. Then interview individual custodians and IT personnel who manage shared resources to determine the types and volumes of potentially relevant ESI and hard copy documents and to make sure that these individuals are complying with preservation instructions.
Next, collect the potentially relevant ESI in a way that is cost effective but forensically sound, i.e., it avoids the risks of losing data or altering key metadata. Consider your client’s IT and legal personnel, the collection resources of your own firm, and the employment of special e-discovery counsel or e-discovery vendors to assist with the collection process and subsequent steps.
Consider what to recommend to your senior colleagues and the client regarding issues to address with opposing counsel. These issues can range from the negotiation of nonwaiver orders, confidentiality orders, limits on ESI searching, specific search terms, production dates and formats, and cost sharing.
7. Educate the partners. If you are doing your job well, you will have immediately investigated and ensured that the necessary legal hold is in place, quickly determined what obligations and deadlines are pending under the applicable rules, and planned the next steps to propose to your supervising partners or senior associates. Err on the side of more rather than less communication. At a minimum, keep your team advised of your efforts through frequent e-mail reports. Do your homework, and remember that it is your responsibility to make reasoned recommendations. If discovery issues are not getting sufficient attention from your superiors, do not hesitate to pick up the phone to speak with them or even camp out at their offices to get the attention that the case requires. They will appreciate your diligence.
8. Manage the process. It is not unusual for e-discovery to cost a client $50,000, $500,000, or $5 million depending on the scope of the case and the quantity of potentially responsive ESI. The biggest cost driver is volume, so early on you need to get a handle on the sources and volume of potentially relevant records through your custodian interviews and other fact-gathering efforts. Keep a close eye on costs as data is collected and processed, and immediately alert supervising attorneys to any sources that are problematic in terms of volume or other issues.
The next biggest drivers of work and associated costs are the decisions you make regarding how to (1) reasonably narrow the volume to be collected; (2) search, collect, review, process, and produce ESI; and (3) use various resources, including vendors, software, review personnel, and processes, to get the job done. Smart practices and processes frequently can save 75–90 percent of e-discovery costs.
Be creative in your approach, and consider different options for handling different data sources: Does every data source need to be reviewed? Does every electronic record of every potential custodian need to be collected, or can you be more selective in your collection efforts and still be confident that you are getting everything relevant? What search terms and sampling can be used to separate the potentially relevant records from the irrelevant prior to any human review? How concerned is your client with producing nonresponsive material? What is the likelihood of privileged material appearing in a particular data source? Can automated filters be used to identify those documents most likely to be privileged and/or “hot” for more careful lawyer scrutiny?
Assess the risks and make informed recommendations about targeting resources for maximum benefit. Look for ways to narrow what you have to collect and review, evaluate software options to efficiently weed out duplicates and speed up document review, and consider less costly and more speedy alternatives to having law firm associates (including you know who) plow through gigabytes of ESI or mountains of paper documents. Get logistical recommendations and cost estimates from multiple consultants, vendors and/or e-discovery law firms, and devote the time necessary to understand the options and lock in the pricing, before recommending how to move forward. Your superiors and your client should be involved in this process, should fully understand the strategy and cost ramifications, and should approve each significant step in the process before you proceed.
The best way to survive your first e-discovery assignment is to combine your attention, good judgment, hard work, and fact gathering with sufficient expertise. After getting help from inside or outside experts in one or two cases, you will start to develop your own expertise in e-discovery, and you will have transformed a potential disaster into an opportunity to become a better lawyer and a more valuable resource for your firm.
 
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