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Lessons in E-Discovery Practice

Robyn Elizabeth Marsh

Lessons in E-Discovery Practice
jayk7 via Getty Images

While electronic discovery is not a new advancement in the practice of law, certainly not in the realm of litigation, the more technology advances and develops, the more nuanced and technical the practice of compiling, reviewing, and producing electronically stored information (ESI) becomes. The problem with this, however, is that not every practitioner or judicial officer is on the same part of the (steep) e-discovery learning curve, which sometimes makes the already adversarial discovery process more frustrating and/or contentious. Discovery is not—and never will be—perfect, but some of these practice points should be helpful.

Be Proactive

Litigation usually starts to percolate before a lawsuit is formally filed. Clients can get ahead by issuing comprehensive legal holds to appropriate custodians. Some clients are more litigation savvy than others, so take advantage of any opportunity to review or amend the litigation hold in advance. The scope of the hold should go beyond just paper documents or email. As aptly noted by the Northern District of Illinois in Balderas v. Illinois Central R.R. Co., 2021 WL 76813, at *3 (N.D. Ill. Jan 8., 2021), many types of electronic communications are commonplace and relevant to discovery:

It cannot be denied that in the world in which we live emails of a party’s employees may be the most compelling form of evidence. The value of emails and texts messages can be particularly significant in litigation due to the fact that the ease of sending or replying to such messages can cause people to say things they might not otherwise say in traditional correspondence. Indeed, they are often replete with unrehearsed, spontaneous statements that surpass in simplicity and frankness and ease of understanding other far more complicated bits of evidence.

Id. The litigation hold should include directives to preserve all forms of communication, including text messages and related messaging applications such as LinkedIn, Instagram, Facebook, or WhatsApp. Custodians often fail to appreciate certain default settings on their phones or the application itself, which can have an “automatic delete” function after 30 days, which, once discovered, can be too late to retrieve the information. In sum, be as thorough as possible in making sure everyone understands the importance of preservation of electronic data from the get-go.

Start Collecting ESI Early

Create a list of relevant custodians and prepare a discovery “matrix” of relevant categories of information from a defensive and offensive point of view before collecting information. Keep track of your collection efforts, search terms, and interviews with custodians. Collection and processing of ESI is a time-consuming and laborious process, notwithstanding the review for responsiveness and privilege in advance of production. The earlier you start, the better stead you will be in for the length of discovery period. 

Make Sure Offensive Discovery Contemplates the Request for All Types of Electronic Communications

There should be no room for confusion as to the scope of what type of information is requested in discovery. Many a “smoking gun” communication has occurred outside of company e-mail, and it is important to not give the adversary an opportunity to split hairs on what is encompassed in a request for “documents and communications” to avoid collecting and producing such information.

Prepare for Discovery Disputes that Can and Likely Will Arise

While it is a lofty wish that parties will resolve disputes amicably, that is not always the case and a third party intermediary will often need to weigh and decide the dispute. Before discovery starts, parties should attempt to agree to an ESI protocol to offset the breadth of disputes that can arise once discovery begins. Further, to the extent the parties have the ability to outsource and choose a third party intermediary (i.e. a Special Master) to address such discovery disputes, due diligence and research on the intermediary’s depth of knowledge, experience, or sophistication with e-discovery is critical. Having a party decide such issues of such significance, without the proper background or basic understanding of electronic discovery, can make or break the discovery process, especially if your adversary is equally inexpert in e-discovery. Take the time and effort to ensure you have a party that has more than a rote understanding of e-discovery, as it can only ease the process when disputes arise.