I’ve been speaking a lot recently with in-house counsel and clients about some of their pain points relating to e-discovery. While the high cost of e-discovery (which I’ve written about in other columns) remains the primary issue for clients, I’ve developed a list of other concerns that are primarily process-related.
Attention to some or all of these can spare clients headaches, and may also assist in avoiding unnecessary costs.
1. Remember legal hold notices are sent to, and read by, the company’s employees. These need to be interpreted by and acted on by front-line personnel. Draft them that way. Avoid legal jargon. Make sure the notice is easy to understand and highlights what the employees need to do, and what is expected of them.
It’s helpful to work with the client to draft the legal hold (they may even have a standard form for this) to get insight into how the clients and their employees talk about and understand the issues and related documents.
2. Avoid framing legal hold notices by legal issue. Clients and businesses generally do not organize their business and its records by legal issue, and that is also not how employees understand the records they work with. Instead, break down the legal issues into the kinds of document types and categories related to the evidence required to prove or disprove each issue. Employees can generally relate to and understand document types and document categories. However, ensure the converse: make sure all the legal issues are represented by the document types and categories you ask to be preserved.
3. Be specific in identifying what documents must be placed under legal hold. For example, instead of just “banking records” try: customer account agreement at branch number 123 in October 2013, account statements, account opening documents, signature cards, cheque images, etc. And instead of “hospital records” try: ambulance reports, admission reports, doctors’ notes, nurses’ notes, pathology reports, X-rays, patient discharge, reports, etc.
4. Custodian interviews are not always pro forma work that can be delegated to the lowest-cost junior lawyer who knows nothing about the facts or the law.
Custodian interviews can be “mini-discoveries” that require understanding to be done properly. While I always recommend using templates or checklists to start custodian interviews, it’s helpful to have experience to know when to move off script and ask key questions.
5. The point of e-discovery is evidence. So, understand the pleading rules and causes of action and defences for the kind of matter. (If applicable, read the jury instructions.) Think about what evidence will be required to prove or disprove claims. Stay relentlessly focused on that.
6. Ask for permission before doing extensive IT or records custodian interviews. It’s rare a company does not know its own IT systems. It’s more likely the first person you do speak to is not the best person to answer your questions. In some larger corporations, there may even be specific people designated for this work. And please don’t ask for a “data map” and think the job is done. Most data maps are architectural in focus and may not reflect the ability to search or retrieve content. Not only do you need to know where the computers are, but also what they contain, what’s in and attached to them, how what’s inside can be searched, and how it can be retrieved.
7. Prepare and create budgets and project plans — every time. A failure to plan is a plan to fail, and generally costs clients money. Tracking an e-discovery project against a plan is a good way to determine when things are not going according to expectations.
8. Encrypt all of your client’s data — every time. Particularly in transit. Ask your client, or figure out, if the data also needs to be encrypted at rest. (Encryption at rest may be particularly important for health-related data, or data from certain regulated industries.)
9. Be clear about what you are doing with search terms. Be clear with the client, opposing parties, and the court. Misstatements in this area cause confusion and rework. Searching can be done in so many ways and at so many points in the e-discovery process, it inherently leads to confusion about what is going to be, or has been, done. Be particularly clear about when you are using search terms as an artificial filter, for example at the point of collection or during pre-processing.
Using search terms at these stages (rather than once all the data is loaded into a litigation support database) means if a search term doesn’t hit on something, records are left behind so a potentially relevant record not found by search terms will thereafter not be available in the e-discovery process. If you are going to do this, (which is appropriate in some circumstances) protect this decision with a documented meet and confer agreement or in a court order. Better yet, use knowledgeable people to devise search strategies and terms.
10. Use rule-based processes available to control or object to the format of productions. Do not agree to produce documents in a format the client can’t accommodate, and propose a form of production the client can accommodate. Try to avoid going into document review — or production — without having production format confirmed. Clients dislike hearing after production there is now an avoidable dispute about it.
What readers might notice is most of the above tips are not technology-driven. I am a big fan of the appropriate use of technology, but I recognize technology in e-discovery serves primarily as an amplifier. It will amplify the effects of good ideas and processes but will similarly intensify the pernicious consequences of poor process design. Using good e-discovery practices can be the most effective way to avoid e-discovery challenges and unwanted costs.
I also believe most clients prefer it if you discuss up front with them whether e-discovery is an area of focus for you and whether additional help is needed, either from a specialist firm or service provider. Others have said they don’t need their litigators to be all things to them, but they do need to understand the risks to the client and its business of whatever the lawyer proposes. Clients are not well served by negative surprises. Asking for e-discovery expertise may save the client headaches and costs over the course of the litigation.
