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April 10, 2012

E-Discovery Collaboration Between Clients and Counsel

Courtney E. Ward-Reichard Esq. and Frank Nelson – April 10, 2012

The ever-increasing amount of electronic information means that careful planning, open communication, and efficient workflow are essential through all phases of the e-discovery process. Outside counsel needs to effectively collaborate with clients to achieve desirable outcomes while also managing and containing costs.

What Is E-Discovery?
Not so long ago, documents produced in discovery were almost exclusively found in paper form. Even if a document was created in a word-processing program or other computer software, it was usually located, reviewed, and produced on paper.

As technology evolved, so did discovery practices. At first, requests for electronic data were considered as a supplement to traditional requests for paper documents, and the term “e-discovery” was created to describe a process conducted in parallel to “regular” discovery. Now, electronically stored information (ESI) is where discovery usually begins and where most effort in the discovery process is concentrated.

The Phases of E-Discovery
The Electronic Discovery Reference Model (EDRM) is the most commonly used framework for understanding the process of e-discovery. The phases of the EDRM include:

  • Information Management: how ESI is stored and managed within an organization;
  • Identification: determining the location and custodians for ESI within an enterprise;
  • Preservation/Collection: issuing effective litigation holds and the collection of potentially responsive and relevant ESI;
  • Processing/Review/Analysis: converting ESI into a reviewable format and reviewing and identifying responsive and relevant documents;
  • Production: providing documents to opposing counsel in an acceptable format; and,
  • Presentation: presenting documents to the fact-finder in motion practice or trial.

Business entities traditionally handled the information-management phase internally but engaged outside counsel to perform most of the other tasks associated with e-discovery. In an effort to control costs, many larger corporate entities have sought to move some of these processes in-house or to other types of service vendors. Even in these situations, however, there is still a role for outside litigation counsel to assist clients in each stage of the EDRM.

Information Management
The first phase of the EDRM is information management: managing how an entity stores and manages all information, but especially electronic information. First and foremost, the process of information management should be guided by business needs. Nevertheless, ensuring that information can be located in response to litigation is also important.

Creating a systems data map is one way to determine and preserve the location of electronic information. Such a map—particularly in a graphic format—can be extremely helpful for both inside and outside counsel. It should include all locations where electronic data can be found, and it should identify and describe information stewards and other managers of various information repositories. A detailed and updated map allows counsel to quickly create a plan for retrieving information when litigation begins.

Frequent updating of the data map is more important than ever, as internal information-sharing vehicles mean that more individuals now control the creation and location of data. Another challenge to assessing the scope and location of business data is the foray into social media. These new facets of business data and communication represent a complex, nonlinear collection of data and data locations and are often not part of the formal business-data-storage structure.

Many business entities are investing in dedicated e-discovery software that “crawls” the network, searching for updated or new content, adding to a master index that provides an abstracted view (by custodian, date range,and content type) of business data. These sophisticated tools enable legal, compliance, and IT teams to respond rapidly and efficiently to event-driven investigation demands and ongoing information-governance needs. As a part of a complete information governance strategy, the system can discover, classify, manage, and preserve information according to business value and legal risk.

Of course, a key element of managing information is knowing when to dispose of it. First, a corporate retention policy needs to serve the business needs of an organization. Inside counsel should make certain that the policy is enforced and reviewed on a regular basis to determine whether the policy is serving its intended purpose and whether it takes into account all types of information—both electronic and otherwise—within the organization.

The next step of the e-discovery process is identifying the electronic data that must be searched for purposes of litigation. Interviewing record custodians is nothing new in the discovery process, but the complexity of e-discovery means that planning for those interviews is critical.

It is important to consider how business-critical information is generated, how is it manipulated or collaborated on, and what major systems “touch” the data. Sometimes, too much emphasis is placed on individual identities or roles. The process of information flow within an organization is often neglected when selecting custodians. Again, a detailed and up-to-date systems data map can be extremely useful.

During this phase, outside litigation counsel can also play an important role. The discovery process is not only about providing information in response to discovery requests—it is figuring out where information needed to prove your case themes is located. These strategic decisions need to be considered at even the earliest stages of the e-discovery process.

Outside counsel can also be employed to interview custodians during the identification phase, using those opportunities to also gather facts and identify potential witnesses. Such interviews are also an important part of completing the process of locating ESI, and paper documents as well. No matter what policies are in place, interviews of individual custodians may reveal information in other locations—home computers, mobile devices, a desktop hard drive, or the “cloud.”

Once ESI is identified, the next step is to preserve and collect that information. A litigation hold notice is an important part of this process, and outside counsel can play a role in designing the notice. Even if the litigation hold process is handled internally, outside counsel should be aware of the timing and content of the notice.

A litigation hold notice that is several pages long and full of legalese is not the best way to accomplish this task—it is likely to be misunderstood or ignored by the recipient. An effective litigation hold should be easy to understand, and it should contain very specific information about the appropriate response from the recipient. It should detail the legal issues at hand, the timeframes affected, and specific steps to be taken by the custodian to avoid spoliation or assist in the collection. In the collection process, counsel will likely be asking for a significant amount of a custodian’s time, as much as 5–7 hours per custodian. Those expectations should be presented up front.

A litigation hold is also more effective when issued to a targeted group of potential custodians and followed up quickly with a personal contact to answer any questions. Otherwise, the notice is much more likely to be ignored, or it will be ineffective. Ideally, the legal-hold process registers and records a response from the targeted custodian. This could be as simple as providing a check box indicating understanding and compliance with regard to the prescribed actions within the legal-hold communication. As litigation counsel, it is understandable why a very broad list of recipients and comprehensive language is tempting, but clear communication to a more limited group of carefully identified custodians is much more likely to be heeded.

The collection phase is a good place for an organization to consider moving some processes in-house, working in cooperation with IT professionals within the enterprise. For instance, a significant time-saver is investment in tools that can scan and segregate live and archived email or document data by custodian, keyword, concept, and date.

The processing, review, and analysis stages of the EDRM are by far the most expensive—and also where efficient processes can result in the most savings. One traditional approach was to reduce the per document review cost by employing contract attorneys or off-shoring document-review work to places like India and the Philippines. But there are trade-offs with outsourcing the review process, both in terms of quality and in the ability to use the knowledge of facts gained by reviewers during review in later phases of the litigation.

Exercising control over the size of the review set through effective culling can allow the use of more sophisticated reviewers. There are many methods to employ here: utilizing effective search terms, removing duplicates and clustering near-duplicates so that reviewers can pass over or bulk code or highly similar data. Some clients have achieved cost savings by implementing the same processing and review technology traditionally found in vendor service bureaus or litigation support departments at law firms.

There are several emerging technologies that further cull data sets, using sampling algorithms, predictive coding, or conceptual search techniques. Pricing models for these technologies may still exceed savings, but there is significant promise for the future.

Once the review process begins, there are more opportunities for collaboration and efficiency, particularly with respect to the design and implementation of custom review workflows necessary for modern electronic litigation. Outside counsel should take care in developing a document-review protocol that is sufficiently detailed, but also easily understood. The protocol should include not only responsive documents, but also those that can be used affirmatively—and the reviewers should be called on to identify key documents during the process of review. In addition, using a review platform accessible remotely will allow reviewers in many locations to participate.

Once responsive documents are identified, the next step is production. Much expense can be saved in this stage if the parties have agreed on parameters and format ahead of time. Large productions composed of TIF images can spiral productions costs quickly, so explore those expenses before agreeing to a production protocol.

One emerging alternative is to share a web-hosted review platform among litigants—exposing various subsets to specific parties. While these arrangements are nontraditional and require detailed communication, the parties are essentially sharing one digital copy of the document set. The savings incurred can be significant enough to encourage cooperation.

Despite the explosion of information, at the end of the day, an effective presentation at trial still must come down to a handful of critical documents. Collaborating throughout the process will make it easier to identify those documents in earlier stages and result in a better presentation at trial.

The e-discovery landscape is constantly changing, and corporate clients are understandably seeking to control costs and add predictability. Nimble outside counsel will adapt to these changing circumstances and assist their clients in navigating the e-discovery process.

Keywords: litigation, technology, general counsel, outside counsel, e-discovery, ESI, production, metadata, document management

Courtney E. Ward-Reichard Esq. and Frank Nelson – April 10, 2012