It is the beginning of a new year and I thought it the ideal time to list out those steps that are absolutely critical when an attorney is confronting his/her obligation to produce e-discovery in connection with a litigation. Bear in mind, the below list is not exhaustive and each step is replete with technical and tactical sub-steps and decisions. However, the nine steps below are a useful road map to get started.
- Assess whether your case involves e-discovery. In today’s technology-laden world where emails are ubiquitous and many of us interface daily with the internet of things, chances are your case will involve e-discovery.
- Implement (or cause to be implemented) a comprehensive and appropriate ESI preservation protocol. Remember, it is wise to cast a large net when it comes to preserving data. That strategy likely changes when it comes time to collect/process data. Make sure to familiarize yourself with the client’s deletion policies, backup tapes, and shredding procedures. See next step. The scope of your hold notice is necessarily informed by your client’s data including its location.
- Understand the client’s ESI systems and storage. Remember, data maps can be helpful but are often out of date.
- Understand (and educate your client about) the various options available for collecting ESI (i.e., self-collection vs retaining a vendor; targeted collection vs robust collection).
- Identify the various custodians (and meet with/conduct collection interviews of live custodians) who may have potentially relevant ESI and understand the various media on which that ESI resides.
- Meet and confer with opposing counsel to develop a mutually agreeable discovery plan that addresses common ESI issues including production costs and deduplication methods.
- Collect ESI (ideally using a vendor especially when the custodians include complex or dynamic databases or servers) in a manner that is defensible and preserves the integrity of the data (for example, do not forensically image the hard drive of a Mac using a tool designed for Windows or run the risk of overwriting the hard drive’s boot sector).
- Explore ways to minimize the review costs associated with reviewing for production the collected documents.
- Finally, produce responsive non-privileged ESI in a recognized and appropriate manner.
As discussed in past blog posts, it is critically important for counsel to be involved in each step of the process as the recent case law makes plain that Courts expect counsel to be actively involved in collection/review and production. Indeed, we have seen a spate of case law from 2016 where the Court imputes a client’s failures on counsel and sanctions both! Finally, if you feel incapable of handling any of the above steps, get help! Various ethics opinions (not yet adopted in New York) suggest an attorneys’ duty of competence owed to one’s client includes being competent in matters of ESI.