In 2013, Allison C. Stanton, Director of E-Discovery, FOIA, and Records for the Civil Division of the United States Department of Justice (DOJ), acknowledged that “electronic evidence plays a tremendous role in investigations.” Two years later, these words could not be truer. This article provides some basic guidance to attorneys new to counseling clients regarding production of electronically stored information (ESI) in response to government investigations.
Vendor Selection
There are many companies that offer ESI support, such as data collection, databases, and document-review tools—e.g., FTI Consulting; Evolve Discovery; Exterro; Advanced Discovery; Kroll Ontrack; 7safe; Altlaw; Compliance Discovery Solutions; Inventus; Servient. The similarities among these companies outnumber the differences, but there is more than price to consider in choosing the “right” vendor. Among other things, you should consider vendor data-collection capabilities; search/review capabilities (including technology assisted review (TAR), predictive coding, and redaction tools); processing capabilities (including ability to process and render searchable PDFs, emails, and TIFFs); production capabilities (including privilege-log generation and sequential bates numbering); and industry reputation.
Generally, it is advisable to send a request for information (RFI) to a short list of vendors, as the complexity or clarity of their responses to your pointed questions may help with the decision process. After receiving responses to an RFI, it is also worthwhile to ask vendors to demonstrate their technology, provide a list of references, and identify their security procedures and resources, both online and at any facility where they operate. Yet another thing to consider is the vendor’s database maintenance schedule (i.e., frequency and at what time) and quality-control schedule, because when a database is down, attorneys cannot review documents.