[Editor’s Note: EDRM is proud to amplify the educational efforts of our Trusted Partners.]
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.
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.
Read more about the eDiscovery process for small firms here.
