Electronic discovery, also known as eDiscovery, is just discovery of electronically stored information (ESI). Simply put, eDiscovery is obtaining ESI from your client, sorting through it, and producing the relevant ESI to the requesting party or, conversely, requesting relevant ESI from another party.
What Is eDiscovery?
eDiscovery processes have exponentially simplified over the past 10 years. This is the result of eDiscovery software companies modifying and updating their software to keep up with the demands of ever-growing data sources and types. There are essentially four components of eDiscovery: preserving relevant data, obtaining it from your client, culling through it (usually using software), and producing it. For small law firms, the first two are arguably the most important and the most difficult.
When to Preserve Relevant ESI
The federal standard that many state courts embrace holds that a reasonable anticipation of litigation is what triggers the obligation to preserve ESI. Put differently, when your client reasonably anticipates a dispute, your client must begin preserving relevant data. Likewise, the other side to that dispute has the same obligation. A litigation hold letter documents this obligation.
Litigation Hold Notices
To be meaningful, litigation hold notices, or document preservation letters, should contain as much information as reasonably possible. This details what the recipient needs to preserve. To say "preserve everything" is not appropriate; instead, ask the recipient to preserve names, dates, and topics. Later in a dispute, the litigation hold notice may become relevant if there was a failure to preserve and the question of whether and when the other side was alerted to the dispute arises. It is a good practice to send out this notice as soon as possible to trigger the preservation obligations; however, it is noteworthy that your client has those obligations as well.
Identifying Relevant Data
A natural component of preservation is identifying relevant data and sources with your client. Alert your client to their preservation obligation as soon as possible in the relationship. For example, place an explanation about ESI in a retainer agreement, include a note about preservation obligations, and encourage the client to initiate a discussion with counsel about ESI. This helps your client and protects you and your legal team.
Recent federal cases on which many state court judges rely for guidance have determined that attorneys who leave the preservation obligation up to their clients or distance themselves from that process can be liable for any possible missteps, even at the hands of the client. Thus, the better practice is to alert the client to preservation obligations as soon as possible and document your involvement in identifying and preserving relevant ESI.
Documenting the Identification
Attorneys know that disputes and cases are fluid and full of variables. A case may settle before there is a chance to conduct or require any eDiscovery, so having a standardized preservation protocol will make the process more efficient for both counsel and the client. Of course, everyone stores data differently and the relevant ESI is unique to each dispute. One good approach uses a questionnaire that informs the client of the preservation obligation, asks how electronic devices and software are used, and identifies the individuals who are involved and when. Counsel can then identify key custodians of the data and narrow the data set within a specific time frame. This can reduce the storage costs if counsel employs an eDiscovery software vendor.
Determining which data is relevant is unique to each case, and some relevant data may not ever be identified or preserved. In this case, the opposition will likely claim spoliation that can lead to hefty sanctions on your behalf. However, undertaking reasonable efforts to identify and preserve relevant data as early as possible in the dispute and documenting those efforts can establish a good faith to avoid trouble. Naturally, a preservation demand with sufficient details to allow the other party to reasonably identify data is ideal. By contrast, one that omits such details may be deemed an ineffective trigger that failed to properly notify the recipient to preserve ESI.
Collecting Relevant ESI
The second important area of eDiscovery for small law firms is the collection of relevant data. In the past, this was cumbersome and would even require forensically imaging hard drives and taking custody of data. However, with most businesses and people using cloud storage, and most eDiscovery software vendors supporting cloud computing, it is now significantly easier to input a client’s ESI into an eDiscovery platform and allow legal teams to work with the data.
Talk to Your Client
IIt's wise to know the requirements of your jurisdiction regarding ESI preservation. However, where there is no requirement that attorneys take possession of the data, they are not precluded from doing so if the situation requires. This is part of the discussion to have with the client early on so you can determine whether it is best to maintain the ESI where it is or to collect it for your legal team and how.
Search and Production of the Data
The other components of eDiscovery—searching the data and producing it—are much easier thanks to the progressive innovations of eDiscovery software companies. In years past, eDiscovery software had little flexibility in their pricing models, associated costs, and application platforms. This put the software out of reach of many small law firms. Recognizing that small law firms constituted the vast majority of the marketplace, software vendors began to modify their applications for different modalities, such as web-based portals, with flexible pricing.
Finding an eDiscovery Software Provider
One of the most difficult responsibilities counsel has in the eDiscovery process is identifying an appropriate and cost-effective software provider. Fortunately, many eDiscovery software companies employ attorneys alongside their IT departments. Such staff can guide and assist counsel in gathering and uploading ESI into their systems. They also help attorneys use their software and create production sets.
Although the software is very high tech, it becomes easier to use each year. Counsel only needs to research key capabilities to identify potential software providers and then, when appropriate in a case, contact the providers for advice and pricing proposals. The competition in the eDiscovery software market is so great, even small law firms can negotiate rates with providers.
What to Look for in an eDiscovery Software Provider
Many eDiscovery software companies have embraced the reality that, while eDiscovery costs can usually be recoverable in a case, parties in litigation rarely have unlimited funds for eDiscovery. Efficient providers incorporate cost calculators based on the data size and hourly rate, which is useful in cost-shifting arguments. Most software also have add-ons, such as the ability to share notes and cull information with other parties, that can save the client money.
Items to Note
The production stage of eDiscovery, whereby counsel provides requested documents, has also become phenomenally easier, thanks to eDiscovery software. The days of physically Bates stamping documents are long gone. The software generally indexes each page automatically with artificial intelligence-powered review. This technology can also create separate privilege logs and redact parts of documents.
An important part of this stage is intentionally producing ESI by performing at least one quality control check on the production set. Preferably, you will have your client do the same. Not only will they not be surprised in their deposition when confronted with their own emails—looking at you as if to say, “How did they get my emails?”—but they will know what is being conveyed and may even catch a privileged document they forgot to tell you about.
At the very least, having your client participate in the process and review the production set can limit liability for inadvertent disclosure later. In a now famous federal eDiscovery case from California, a very large law firm inadvertently produced and disclosed their client’s confidential and proprietary formula for making lightweight concrete to the client’s largest competitor. Naturally, that impacted the client, who sued the law firm. That unfortunate situation could have been avoided if the client reviewed the production set.
Small law firms can and must do eDiscovery. It is not just for the largest law firms or the largest cases anymore. eDiscovery is in every kind of case because ESI is in everyone’s lives. Whether it is email, voicemail, social media, photos, videos, or any other form of electronically stored data, our clients are using and creating it.
The key is simply to learn about the process and cases through continuing legal education. Then, develop your own approach so that you identify and preserve relevant ESI as early as reasonably possible. That way, you'll understand the various options for how you can gather and use that data with eDiscovery software.
About the Author
David Steinfeld, Akshita Singhal & Lianna Vaughan
This post was written by David Steinfeld. David is a Florida Bar Board Certified business lawyer with 25 years of experience. AV-Preeminent Rated. Ranked by Best Lawyers in America. Florida Super Lawyer and Legal Elite. (https://www.davidsteinfeld.com/) This post was reviewed and published by Akshita and Lianna, the in-house team of Venio.