December 22, 2020 Articles

E-Discovery Starts Before the Complaint Gets Filed

Must-have tips on ESI collection

By Maria-Vittoria "Giugi" Carminati
E-discovery begins with that first email from the client. Learn what to do from there.

E-discovery begins with that first email from the client. Learn what to do from there.

littlehenrabi via GettyImages

A potential client reaches out for you to represent it on a new matter. Maybe you meet with the client in person (unlikely today, unfortunately), maybe you speak by video or telephone, or maybe you communicate entirely by email at the beginning. Regardless of the method, there comes a point where the potential client or newly signed client gathers and begins sending you documents. These documents may include contracts, emails, text messages (usually via screenshots), videos, drawings, photos and other files and documents. While it is common to think of e-discovery starting later after a case has been filed and one or more parties serve written discovery, the truth is that e-discovery begins right away, even before your client starts sending you documents. At this juncture, it is both an opportunity and a challenge to “get it right” when it comes to reducing costs, frustration, and inefficiencies down the line.

Attorneys are used to discussing e-discovery at some point in the case. In federal cases, this usually happens at the Rule 26 Conference, which specifically directs lawyers to discuss Electronically Stored Information (“ESI”) in their development of a “discovery plan”:

Discovery Plan. A discovery plan must state the parties’ views and proposals on: […] any issues about disclosure, discovery, or preservation of electronically stored information, including the form or forms in which it should be produced[.]

Fed. R. Civ. P. 26(f)(3).  In state cases, the conversation about electronic discovery, if it happens, usually takes place during the rule-mandated scheduling or case management conferral, but state rules don’t always specifically address ESI. Compare Massachusetts Rules of Civil Procedure 26(f) (providing a conference “as of right” regarding electronic discovery, to be held within 90 days from the request) with Washington Superior Court Civil Rules 26 (not specifically addressing e-discovery) and Minnesota Rules of Civil Procedure (mirroring Fed. R. Civ. P. 26). These conversations, though, are taking place far too late in the process. Indeed, e-discovery began with that first email from the client. And here is what to do about it.

Understand Your Client’s Universe

Depending on the size of the case, and the firm, attorneys can use an outside vendor, utilize an e-discovery attorney, or handle the process in-house. Regardless of the method, though, there are some practices that can significantly improve pre-suit procedures, complaint-writing, and e-discovery planning.

For individuals, the largest repositories of information are going to be emails, text messages, messaging apps, and social media. While clients may interact with these platforms via their phone and their inbox, much (although not all) of this information is actually stored on the cloud. An e-discovery interview can be as beneficial as a case intake interview. In fact, whoever conducts the e-discovery interview should sit in on the case intake interview(s) to get a sense of the players, the case, the locations, and the issues. They will then be able to use that information in the e-discovery interview, which in turn should ask the client how they communicate, with whom, and through what means. Questions to ask include:

  • Do they have multiple email addresses? What are the email addresses and providers? Are any of these employer emails or are they all individual emails?
  • Do they talk to people via WhatsApp? Hangouts? Slack? Text messages? WeChat?
  • How many computers do they use? Who owns the computers? Who has access to them?
  • Where and how do they store their files? Locally or online?

If you are dealing with a more complex matter or a business client, you would want to ask different, or additional, questions to explore the same things:

  • How does your company store and share documents?
  • Do employees communicate only by email or do they use other platforms, like Slack, MS Teams, or Google Suite?
  • Do employees have video meetings? Are they recorded? Where are the recordings?
  • Do employees have their own laptops, do they use desktops, and do they work from home?
  • Is your data storage on-site (highly unlikely for most companies) or off-site? Is there an automatic back up? Who manages that?

Asking these questions will begin to give the attorney an idea of where to look for information and whether or not to send out litigation hold notices. Additionally, it will inform data collection both immediately and down the line. It also allows you to have an informed conversation with your client about data preservation and to identify where to do initial culling.

Use the E-Discovery Interview to Inform Case Strategy

The next step, and this is why an attorney needs to be involved, is to ask more precise questions which meld the information from the case intake interview and the e-discovery interview. Topics to cover include:

  • Go through the individuals identified at this juncture and ask whether the client communicates with them through any of the identified channels.
  • Discuss where documents, drafts, photos, videos, and recordings related to the case are currently stored.
  • Discuss if any additional electronic information relevant to the case is going to be generated and how to capture it moving forward.

In the immediate aftermath of the meeting, and in preparation for any correspondence or complaints, having a good handle on the information that exists and could exist allows attorneys to better understand their case and the other side’s potential arguments. It also cuts down on the “surprises” that might arise later because of things your client failed to mention or didn’t think were relevant. (Having experienced those midtrial, I can attest to their unfortunate consequences).

Collect—A Little Bit

At this juncture, attorneys may not want to conduct an all-out ESI collection exercise. However, they should take steps more robust than telling the client, “Send me your stuff.”

For example, regarding text messages, attorneys can ask individuals to securely download their text message history with certain individuals using a software or, better, come to the office and have it done there. (For examples of how to do this, you can review a number of webpages or proprietary pages from the likes of Samsung and iPhone). The same is true for WhatsApp and WeChat histories.

Regarding emails, outside vendors can do an email “pull” relatively inexpensively if the volume of emails is small. If an attorney doesn’t want to take that step yet, a smaller yet still productive step is to request access to their client’s email and run an initial key word search, tag the email results from those searches, and download that subset. It is important to take note of the key words used so that they can be provided to the other side, or the Court, at a later time.

As for the actual collection of documents, it is usually best not to leave that to the client. Instead have someone from the firm (either a vendor, an e-discovery attorney, a tech-savvy staff member, or a tech-savvy attorney) copy entire folders where relevant information is stored. While copying is not the best practice (it alters the metadata) it does create a saved universe that attorneys can look through and use for case preparation.

We’re Not Done!

So, what does an attorney do with this information? Store it in a folder? Throw it in a drawer? Leave it there until disclosures are due? Attach it to correspondence and complaints? Well, one could choose to do any of the above, but first—and foremost—it would be most helpful to: 1) review the documents for relevance and privilege, 2) bates label the documents marked as relevant, and 3) log the documents in either a document management system or, for a low cost option, an excel spreadsheet. The goal is to create a database from Day 1, which can then be used for a privilege log, disclosures, and exhibits. Below is an example of basic database fields: Date; Bates Range; Document Title; Description; Custodian; Original Location; Privileged; Confidential; Redactions.

Each of these will ensure orderly tracking of documents down the line. The date of the document allows the creation of a timeline by using basic sorting functions. This assists practitioners in a number of ways, including the drafting of complaints. The bates ranges give each document a unique identifier, which allows proper tracking of each document. The document title is a generic term while the description would contain attorney thoughts and analyses regarding the document’s significance to the case. Custodian identifies who had the document when it was collected. The original location refers to the account, equipment, and/or folder the document was kept in originally. The last three columns will allow easy creation of privilege logs and identification of confidential information and will ensure redactions take place early and accurately. Is this time consuming? Yes. Is it worth it? Absolutely.

Today, life—both business and personal—is conducted largely electronically. Couples talk via text message and email, co-workers chat electronically, and paper-only offices are few and far between. From an e-discovery perspective, those daily interactions and relationships are created, memorialized, and conducted electronically. Therefore, when clients bring their cases, they are bringing ESI to the firm the moment they make contact. It is imperative for lawyers to understand that and plan and act accordingly.

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Maria-Vittoria "Giugi" Carminati

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Maria-Vittoria "Giugi" Carminati is a managing attorney of the NDH Law Firm in Denver, Colorado.


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