Revisiting eDiscovery Fundamentals

By Angela Chmielewski

The process of electronic discovery is more than a crucial element of modern litigation, it is an enormous business and area of legal practice unto itself. The eDiscovery market was estimated at $11.2 billion last year — and is expected to be a $17 Billion business by 2027 — and many of the nation’s largest law firms have formed distinct eDiscovery Practice Groups that employ attorneys who focus exclusively on managing eDiscovery-related activities for clients.

eDiscovery involves the collection of all sorts of information that is created, communicated and stored in digital form. This includes email, web pages, word processing files, voicemail messages, database entries, metadata, cookies, cache files and every type of storage media you can think of (e.g., hard drives, flash drives, cell phones, etc.).

While eDiscovery follows many of the same rules as traditional paper-based discovery, it also raises a number of unique issues for practitioners, such as:

• Preserving relevant electronically stored information (ESI);
• Preparing appropriate document requests and responses;
• Understanding and searching for your client’s storage management systems to locate relevant ESI for production, including metadata;
• Producing ESI in appropriate forms;
• Cost-shifting; and
• Privilege concerns.

Adequately preparing for an eDiscovery engagement is important and requires that lawyers are taking the steps necessary to be fully familiar with their client’s information storage system. To that end, practitioners must first determine where all digital information is stored, the nature of the systems and formats used, the type of equipment needed to review the ESI, and the use of third-party vendors in the workflow.

Once the preparation is complete, lawyers kick off the process with a conference with opposing counsel. This conference is governed by Rule 26(f), which specifically requires parties to meet early and confer about discovery, including ESI production and discovery issues. This conference should address the forms in which ESI will be produced, what information each party has available in electronic form, where the ESI is located, the anticipated schedule for production, and specific preservation responsibilities. The Sedona eDiscovery Guidelines are an excellent resource for insights into how to best conduct these Rule 26(f) conferences.

The preservation of ESI is one of the unique aspects of eDiscovery that can be a daunting challenge for practitioners to manage. A party in a litigation must preserve all relevant ESI that it knows it should know is relevant to any present or future litigation. At the outset of a case — and throughout its duration — all counsel should discuss ESI preservation, including what ESI from sources that are not reasonably accessible will be preserved (but not searched, reviewed or produced) and what data might contain relevant information but should not be preserved under “proportionality” factors. The sobering caution here is that a breach of the duty to preserve relevant evidence with a culpable state of mind gives rise to spoliation charges and serious sanctions.

Once the parties have determined what ESI to preserve, it is incumbent upon the lawyers to issue litigation holds. These holds direct employees to preserve certain records and information that may be relevant to the subject matter of a pending — or anticipated — lawsuit or investigation. Once a litigation hold has been established, the client must suspend any document retention or destruction policies to ensure the preservation of relevant documents. Again, lawyers must appreciate that a number of highly publicized court cases have sent a clear signal to litigants: failure to properly administer litigation holds or otherwise not take proper steps to preserve relevant electronic evidence will be met with severe sanctions.

When preparing a request for the production of ESI, lawyers should consider the size of the case, the matters at issue, and the time and resources available for the case. They should identify the information needed, including what time of information the opposing party is likely to store electronically and what is likely to be relevant to the case. And they should learn as much as possible about the opposing party’s information storage system, such as what systems and formats are used, what type of equipment is needed to review the ESI, and whether any translators or third parties will be needed.

Collecting, processing, reviewing and authenticating ESI must be done under the Federal Rules of Evidence. There are a number of steps that lawyers should consider to carefully gather ESI, transfer it to a safe repository, process the data in a forensically sound manner, and then reviewing the information for ultimate production. For example, ESI productions — particularly in large cases — can raise serious concerns about the inadvertent production of privileged information. Proceed with caution and perhaps with the assistance of third-party vendors who can assist with privilege review.

The Lexis Practical Guidance team has created a downloadable model PowerPoint presentation that in-house or outside counsel can use to train others on the fundamentals of eDiscovery in federal litigation. It covers topics such as preserving ESI, understanding proportionality, issuing a litigation hold, avoiding spoliation and sanctions, and preparing document requests and responses.

Other valuable eDiscovery resources from Lexis Practical Guidance include:

• E-Discovery Resource Kit
• Arkfeld on Electronic Discovery and Evidence
• Moore’s Federal Practice – Civil Rules
• E-Discovery Practice Notes

LexisNexis recently hosted a webinar, “E-Discovery Fundamentals,” in which we reviewed these issues in greater detail and provided an on-screen demonstration of various legal research tools on Lexis+ that can help practitioners with the management of eDiscovery activities. Watch a recording of that live session.

All of the resources discussed during the webinar are available to practitioners on Lexis+, an all-in-one platform from LexisNexis that combines superior research and data-driven insights. The site provides legal professionals with all of the tools and resources necessary to practice with confidence and efficiency: Legal Research; Practical Guidance; Litigation Analytics; Brief Analysis; and Legal News Hub. For more information about Lexis+ or to experience it first-hand, get a free trial.