A Client’s Guide to Electronic Discovery Planning

A critical part of litigation in the digital age is electronic discovery. Nowadays, “smoking-gun” evidence is nearly all electronic; and can be found in numerous primary, secondary and backup locations.

Courts have imposed strict rules governing document preservation and production. Clients faced with the possibility of litigation should be aware of these rules even before a case is filed, and sometimes before contacting a lawyer. This means all business clients should have access to the basic obligations of document discovery and should know the most cost-effective ways of meeting those obligations. This page discusses those topics.

Document Preservation

• Once a company reasonably anticipates litigation, it must suspend any routine document destruction policy and put in place a ‘litigation hold’ to ensure the preservation of relevant documents. This obligation is always triggered when a company receives a demand letter or notice from an opposing party or attorney, and may be triggered before receipt of a demand letter if the company should know litigation is possible.
• The “document preservation duty” is based on inquiry into the factual basis of the claim. A company must, at minimum, account for the possibility of discovery from all employees and agents of the defendant potentially possessing responsive information, and immediately put a hold on documents in custody or control of these employees and agents.
• A party’s discovery obligations do not end with the implementation of a ‘litigation hold’—to the contrary, that’s just the beginning. Counsel must oversee ongoing compliance with the litigation hold, monitoring the party’s efforts to retain and produce the relevant documents.

In addition, companies involved in litigation needs a discovery team and a discovery plan at the very beginning of a case.

Discovery Plan

The discovery plan should be reasonable and flexible, but not overly-detailed. Remember, whatever standards you adopt for yourself to follow will be those you are held to if the matter is ever reviewed. Keep discovery plans simple, broad and flexible. The discovery plan should include:

1. A detailed map of the client’s IT infrastructure, including company and personal computers, onsite and offsite storage, PDA users and user policies, and related home computer use.
2. A description of backup, storage and deletion policies and practices.
3. Identification of all persons who may potentially have relevant information.
4. A “litigation hold” order interrupting deletion policies and practices for relevant persons and resources.
5. A list of all resources searched for relevant information, together with a list of potentially relevant resources not searched because of accessibility problems.
6. A list of all search terms and methodologies used to search for relevant information.
7. A list of all persons to whom discovery requests were circulated for review in advance of production.
8. Policies to periodically monitor preservation compliance by the client and client’s agents.
9. Policies to supplement discovery searches and productions when “red flag” information becomes known over the course of litigation that suggests new document resources or custodians need to be included in document production.
10. A policy for counsel to re-check the current state of discovery plan compliance before signing additional discovery responses or pleadings or making important arguments in court.

Remember: one of the big differences between discovery in the electronic era compared to discovery in the paper era is the constantly-changing state of information that is potentially discoverable. The single biggest change in litigation practice is the need to constantly check and re-check the accuracy of information that forms the basis of a case before signing pleadings or making arguments based on the assumption of certain facts.

Discovery Team

The discovery team coordinates all information flow back and forth between counsel and the client. The discovery team should include:

1. A client representative with detailed knowledge of the client’s IT systems;
2. A client representative with detailed knowledge of the case who speaks in behalf of the client. (This person should be someone other than client’s IT representative.)
3. A representative of the client’s in-house legal staff if such a staff exists.
4. An attorney or consultant for outside counsel who can communicate effectively about IT issues and their legal implications.
5. An attorney from the outside litigation team who speaks in behalf of lead counsel.

Affordable Document Collection Technology

Electronic discovery can be extremely expensive if an outside vendor is used to collect, tag and produce documents. To help save costs, we have found an affordable solution that works extremely well for most clients: Microsoft Sharepoint Server. Sharepoint is an affordable, enterprise level software tool used to collect and organize documents into a single location, while preserving underlying metadata of the document. This is extremely useful in document collections.

Sharepoint can also be combined with a plug-in tool, Mimosa’s NearPoint, which combines archiving and recovery in one unified solution, with no impact and re-architecture of production content systems.

The Nearpoint/Sharepoint integration advertises that it does the following:

• Manages data storage costs with complete capture of all SharePoint content including documents, lists, sites and site collections, site configuration and custom metadata.
• Expedites e-discovery processes with integrated search and in-place legal holds across SharePoint server, email and file system content.
• Improves recovery service levels with comprehensive data protection for SharePoint server to allow easy recovery of individual items or complete sites.

Using Sharepoint and related tools, electronic discovery collections can be done at a very affordable cost with off-the-shelf software and expert guidance from McBride Law IT professionals.

Electronic Discovery Checklist

A useful checklist for the litigation team to use in Electronic Discovery is the following:

• Inventory and map the client’s IT network.
• Evaluate backup systems and procedures to assure accurate productions.
• Oversee document collections to assure smooth processes, including the critical chain-of-custody issues.
• Collect only what is needed at the time to minimize costs, starting with active servers and emails.
• Search filter and de-duplicate.
• Properly deal with metadata.
• Manage special issues in document productions, such as:
  Native production complexities
  Large document complexities
  Maintaining attachments and preservation order
  Assuring gap-free bates ranges
  Processing spread sheets
  Using both single page and multi-page TIFF, as the situation requires
  Guarding against inadvertent production

In cases in which we are involved, we work with the entire litigation team to help manage all these functions.

Strategy

Litigation strategy is equivalent to constructing a game plan for an important football game. Winning football teams and coaches watch hours and hours of game film, analyze strengths and weaknesses of opponents, and carefully design a plan for each game. Teams without winning game plans do not consistently win games. Unfortunately, many litigation lawyers ignore meaningful game plans—the strategy part of litigation—even though things of great value are usually at stake. Electronic discovery techniques provide an enhanced window into strategic litigation planning. While documents and research have always been important, technology tools make strategic litigation planning accessible, affordable and highly effective. Therefore, electronic discovery is a gateway to modern litigation game planning.