Over and over again, lawyers are urged to take time at the start of a matter to develop a comprehensive plan to manage the collection, review, and production of electronically stored information ("ESI"). However, even as requesting parties (and judges) are increasingly specific (and short-tempered) in their discovery requests for potentially relevant ESI, too few legal teams reserve adequate space in their case development plan for this important strategic component. With the amended Federal Rules of Civil Procedure putting additional pressure on legal teams to proactively deal with ESI issues, what does it really take to build a case-specific e-discovery strategy?
The short answer, of course, is that the specific facts of the case will determine the complexity of the plan. However, every matter will require analysis (however brief) of the following areas:
- Developing an inventory of potential sources of relevant ESI
- Harvesting ESI in a reasonable and appropriate manner
- Reviewing ESI for relevance and/or privilege
- Processing ESI for production to the opposing counsel
Completing the necessary tasks in each of these areas can obviously take significant time, but developing even a detailed e-discovery plan is a relatively modest undertaking with immediate, significant benefits.
1. Developing An Inventory
Building a list of potentially relevant ESI requires a good understanding of all the ESI within an organization. Part of the e-discovery planning process involves developing a list of the individuals who have the information that the legal team needs to build this inventory. While it's obvious that key players known to have created relevant documents should be on the list of people to question about ESI repositories, many other individuals may also have valuable information. In practical terms, a company's network and e-mail administrators often have detailed information about key ESI repositories. However, legal teams shouldn't overlook the I.T. professional in charge of mobile computing (e.g., Blackberries, Treos, and other smartphone devices). In addition, an increasing number of organizations have a knowledge management ("KM") point person whose responsibilities often straddle the line between managing active files and managing corporate records. And, of course, legal teams should always plan on working with the organization's record management professionals.
How long does it take to develop a game plan for identifying potentially relevant sources of ESI? Building a list of corporate positions that should be consulted may take only a few minutes of brainstorming. Identifying the specific individuals in each of these roles and their contact information will take somewhat longer, but often less than an hour of researching a corporate directory. By any measure, this should not be a time-consuming planning exercise.
2. Harvesting ESI
The enhanced meet and confer requirements of the amended Federal Rules of Civil Procedure strongly suggest that parties should cooperatively decide scope of discovery and production format questions and squarely address potential areas of dispute in advance. However, in order to be most productive-and persuasive-at these meetings, a party needs to arrive with a proposed plan already formed and ready to deploy. In the case of harvesting ESI, the plan needs to answer several key questions:
- What techniques and specific technology will the ESI harvesting process use?
- Who will do the harvesting?
- Will the harvesting capture all relevant ESI?
- What kind of audit trail will the harvesting team create?
- How much will the harvesting cost?
Of these questions, the question of harvesting technique probably has the greatest impact on the entire harvesting plan. ESI can be collected in many different ways, each with its own benefits and shortcomings. An essential part of the e-discovery plan should be to compare collection options and understand the ripple effects of this decision. Collecting all ESI with forensics-grade technology and trained specialists will silence any protest as to the inadequacy of the procedures, but this process is markedly more expensive than other options, in part because it collects large amounts of irrelevant information that must separated before substantive review of potentially relevant materials can begin. At the other end of the spectrum, asking potential witnesses to review their own files and select materials they believe are relevant may disrupt ongoing business activities the least, but it all but guarantees that the data harvesting process will be challenged by the requesting party on grounds of bias, potential spoliation, and general inadequacy.
Building the ESI harvesting portion of the e-discovery plan requires close coordination with in-house counsel. Harvesting data disrupts an organization's continuing operations, and it's important for the legal team to balance this important consideration in developing an approach to acquiring ESI. Analyzing these issues will take a bit of time, mostly in collecting sufficient information required to make decisions. Still, actual time spent on designing a proposed harvesting approach will probably be measured in hours, not in days. Moreover, working through this analysis in advance is likely to save days-if not weeks-of indecision and conflict later in the document collection process.
3. Reviewing ESI
Developing a review paradigm for ESI depends greatly on the review objectives. Will these materials be screened only for barest relevance, or will they also be categorized with greater specificity? What is the likelihood of privileged material within the ESI (or subsets of the ESI), and how will it be identified? Who will be conducting the actual review? After the review is completed, how will these categorized documents be used by the producing party? Each of these questions influences the technology and staffing choices that best match the needs of a specific matter, and each should be taken into account in building out this part of the e-discovery plan.
One frequent complication in developing a review strategy at the early planning stage is that the issues in the case may not be fully understood. Often, the focus of a case changes significantly between the time a complaint is filed and when the case goes to trial. Early decisions about review strategies must include flexibility in the event of sudden course changes. Fortunately, in working with ESI, it's possible to search and re-organize these materials in different ways with only a fraction of the effort it would take in a paper-based review. The actual review process will still take significant time, of course, but at least ESI can be prepared for review relatively quickly.
Ultimately, developing an ESI review strategy probably will require more time than developing any other part of a case-specific e-discovery plan. In particular, choosing a solution from the wide variety of document review systems may require product demonstrations and meetings with competing vendors. However, after some initial decisions, like "How much material will have to be reviewed?" and "What budget and resources are available for the review?" it's likely that some strategic decisions regarding review can be spaced out over time, not just at the start of the matter. By the same token, however, the longer a legal team takes to decide on a specific document review system and work flow, the less time will be available to actually use the tool to find relevant and important materials.
4. Producing ESI
In a perfect world and under the amended Federal Rules, the production format for ESI will be finalized through the meet and confer process. In addition, a party requesting ESI should specifically state the format in which it would like to receive the information. Taken together, both of these practices might suggest that a producing party has somewhat limited power to influence the choice of production format. This is incorrect.
Though a requesting party has an enhanced ability to start the discussion about format of production, a requesting party does not have complete discretion to dictate the terms of production. Unreasonable requests can always be challenged by the producing party, who in turn can present what it considers a more appropriate format of production.
As part of the e-discovery planning process, a party producing ESI should evaluate what its preferred production format will be. That analysis should not be limited to comparing the cost of producing material in a variety of different formats. Instead, it should also consider the format in which the ESI is most useful to the producing party itself. After all, there's no reason why only one side should be able to derive benefits from the document production. Guidance in assessing the most useful production format includes: (1) whether the producing party's in-house review technology is better suited for working with native files or with traditional TIFF images and extracted text for searching in databases; and (2) whether the producing party plans to proactively use any of these documents as deposition, hearing, or trial exhibits that require a fixed, bates-numbered version of produced materials. The answers to these and other questions will help a producing party refine its own preferences and will provide specific reasons that a producing party can use to advocate its position in the meet and confer process or to a judge if the meet and confer process does not resolve the issue.
Deciding on the preferred production format for a specific case may not require extended analysis. Few law firms completely change their in-house document review and processing tools with every case, and it may be obvious which production format will be most useful for a producing party. However, the nature of an ESI collection changes from case to case, and the choice of production format can be strongly influenced by specific types of documents, such as electronic spreadsheets, databases, and "vintage" (i.e., obsolete) data that require special treatment in their production. A bit of supplemental review at strategic points in the case development cycle will help ensure that this part of the e-discovery plan remains closely matched to overall litigation objectives.
Proactively developing an e-discovery plan provides significant benefits. Developing a list of defined action items makes it easy to ensure that all required tasks have been assigned and that no part of the e-discovery process has been overlooked. Equally important, a written e-discovery plan is an important way to validate an organization's efforts to meet its discovery obligations. In the event of spoliation or other allegations, the formal discovery plan and evidence of its implementation constitutes powerful evidence that both a litigant and its chosen counsel acted diligently and reasonably.