1. Litigation Holds
At the time of anticipated legal action, companies should retain the data relevant to the legal action. This extends to both the company and the individuals involved. Pertinent evidence may be in corporate user drives, email systems, and numerous other places.
It is insufficient to merely state the issue and advise that all "relevant material" should be preserved. Instead, outside counsel must provide a list of custodians and specifically identify the material to be stored, including the specific devices where information may be held.
The duties of outside counsel do not end once the hold letter is issued. Outside counsel must monitor compliance. Failing to maintain information could result in sanctions. Fed. R. Civ. P. 37(e)
2. Custodial Lists and Relevant Devices
Counsel should try to identify key witness and sources of potentially relevant documents the moment he or she learns of potential litigation. Counsel should obtain an organizational chart to determine the critical witnesses and arrange interviews with a reasonable subset of custodians to prioritize discovery.
A critical decision in the electronic discovery process is selecting the appropriate technology to collect, process, review, and produce documents. There is no one-size-fits-all approach to electronic discovery. Counsel must first engage the client's information technology department to determine the company's network infrastructure and where the relevant corporate information is stored electronically. Counsel should determine sources of potentially relevant information such as hard drives, file servers, legacy computers (including those no longer in use), shared drives, Flash USBs, laptops, email servers, document management systems, personal digital assistants, instant messaging, cell phones, and home computers. When determining whether to engage a vendor, counsel should be guided by the volume of data to be reviewed and the needs of a particular case. Vendors should have experienced project managers with appropriate technical expertise and security protocols with standardized processes of quality control to protect the client's data. E-discovery vendors should provide an estimate and statement of work to be performed during the project before their retention. It is also recommended that vendors sign a confidentiality and nondisclosure agreement prior to performing any services.
4. Contract Attorneys
It is unacceptable to simply turn the document review over to a third-party vendor. Regardless of whether the documents are reviewed internally or by an outside vendor with contract attorneys, the responsible attorney must supervise those conducting the review. See ABA Comm. on Ethics & Prof'l Responsibility, Formal Op. 88-356 (1988). Steps should be taken to ensure the quality of the resources available and the security measures in place to protect the data. Besides vetting the contract attorneys, a conflicts check should be conducted and confidentiality agreements executed. Contract attorneys should also be trained on the issues, possible categories of documents, attorney-client privilege, and work-product doctrine.
Once the review is under way, the supervising attorney should conduct regular quality-control checks of sample sets of documents. This will help identify inconsistencies in the reviews and the need for additional instruction.
5. Protective Orders
Parties may seek protective orders under Federal Rule of Civil Procedure 26(c). A party may also request that the court issue an order under Federal Rule of Evidence 502(d) providing that a party's disclosure of documents protected by the attorney-client privilege or work-product doctrine does not waive the privilege (unless a party can show intent to waive the privilege). Parties may incorporate into the order a specific and detailed agreement regarding its scope and effect. The protections available under Rule 502(d) do not depend on whether the disclosure was inadvertent, it applies in other federal and state court proceedings, and the court may issue it sua sponte, without the parties' agreement.
6. Search Terms
Keywords can help create focused searches of the client's documents, increase the likelihood that content applies to a case, and reduce the content to be managed. Designing a keyword search requires constant balancing of the materiality of issues in a matter and the risk of being under- or over-inclusive. Counsel should use filters consisting of date range or time period restrictions based on the litigation, author/recipients, domains, and proximity searches. Counsel may not have enough information at the beginning of the litigation to identify useful search terms. Counsel should engage the client to identify the subject matter, key concepts, and nuances, and cooperate with the requesting party in developing search terms.
The recent amendments to the Federal Rules of Civil Procedure arm litigants with a basis to quash overbroad subpoenas and discovery requests. The question has turned from whether the request is "reasonably calculated to lead to the discovery of relevant, admissible evidence" to whether the discovery sought is "proportional to the needs of the case." Fed. R. Civ. P. 26(b). The rule requires parties to state the grounds for the objection "with specificity" and to include the reasons for the objection. Fed. R. Civ. P. 34(b)(2)(B). Parties must also state whether any responsive materials are being withheld based on the objection. Fed. R. Civ. P. 34(b)(2)(C). This may require affidavits to provide the court with information regarding the volume of data involved, the costs associated with preserving the data, and the time and costs associated with reviewing the information and responding to the discovery.
The identification of all attorneys and law firms involved in any matter should be discussed with a client at the outset. Counsel must have a full understanding of the facts giving rise to the litigation and the full scope of all attorneys and law firms involved. An initial search should include the names and domain names of all attorneys and law firms identified. If contract attorneys are conducting the initial review, counsel should consider a brief primer on the attorney-client privilege and the work-product doctrine. Counsel should also prepare a privilege log early and perform a quality check before the final production to ensure that all privileged documents were removed.
Metadata are the attributes describing the history of the data, the name of the originator, size, date, modifications, etc. Although metadata are often not seen by the casual user, they can be relevant in discovery. If opposing counsel insists on receiving metadata, counsel should consider negotiating what portion of metadata must be produced and in what form. Counsel must know the potential risk of disclosure of the metadata or unknown embedded data. The consequences may include inadvertent disclosure of trade secrets, proprietary information, and attorney-client-privileged data. There is no specific ABA model rule regarding metadata. However, attorneys should employ methods for eliminating metadata where they are "concerned about the possibility of sending, producing, or providing to opposing counsel a document that contains or might contain metadata." ABA Comm. on Ethics & Prof'l Responsibility, Formal Op. 06-442 (2006).
10. Foreign Law Implications
Data privacy regulations in the European Union vary significantly from those in the United States. On July 12, 2016, the European Commission formally adopted the "Privacy Shield" agreement, which was negotiated by the European Commission and U.S. Department of Justice to allow transatlantic data transfers between the European Union and the United States without running afoul of Europe's strict data protection directives. However, a company must self-certify its adherence to the Privacy Principles to the Department of Commerce before it may take advantage of the protections afforded by the agreement.
Keywords: litigation, products liability, e-discovery