We like to point out good articles about eDiscovery on this blog to keep our readers aware of trends and best practices. I recently read an article on InsideCounsel titled E-discovery: Memorializing the e-discovery process, written by Alvin Lindsay, which had some good specific examples of where good documentation is important to prevent sanctions and save litigation costs.
The author notes that, since the Zubulake opinions issued by Judge Shira Scheindlin in 2003 and 2004, 1) most jurisdictions have come to expect that parties must issue a litigation hold “as soon as litigation becomes reasonably foreseeable”, and 2) “oral” litigation holds are unlikely to be sufficient since the same Judge Scheindlin noted in Pension Committee that failure to issue a “written” litigation hold constitutes “gross negligence”. His advice: “make sure the litigation hold is in writing, and includes at minimum the date of issue, the recipients and the scope of preservation”. IT personnel responsible for deleting “expired” data (outside of retention policies) also need to receive litigation hold documentation; in fact, “it can be a good idea to provide a separate written notice order just for them”. Re-issuing the hold notices periodically is important because, well, people forget if they’re not reminded. For previous posts on the subject of litigation holds, click here and here.
Retention Policies and Data Maps
Among the considerations for documentation here are the actual retention and destruction policies, system-wide backup procedures and “actual (as opposed to theoretical) implementation of the firm’s recycle policy”, as well as documentation of discussions with any personnel regarding same. A data map provides a guide for legal and IT to the location of data throughout the company and important information about that data, such as the business units, processes and technology responsible for maintaining the data, as well as retention periods for that data. The author notes that many organizations “don’t keep data maps in the ordinary course of business, so outside counsel may have to create one to truly understand their client’s data retention architecture.” Creating a data map is impossible for outside counsel without involvement and assistance at several levels within the organization, so it’s truly a group effort and best done before litigation strikes. For previous posts on the subject of data maps, click here and here.
Conferences with Opposing Counsel
The author discusses the importance of documenting the nature and scope of preservation and production and sums up the importance quite effectively by stating: “If opposing parties who are made aware of limitations early on do not object in a timely fashion to what a producing party says it will do, courts will be more likely to invoke the doctrines of waiver and estoppel when those same parties come to complain of supposed production infirmities on the eve of trial.” So, the benefits of documenting those limitations early on are clear.
Collecting, Culling and Sampling
Chain of custody documentation (as well as a through written explanation of the collection process) is important to demonstrating integrity of the data being collected. If you collect at a broad level (as many do), then you need to cull through effective searching to identify potentially responsive ESI. Documenting the approach for searching as well as the searches themselves is key to a defensible searching and culling process (it helps when you use an application, like FirstPass®, powered by Venio FPR™, that keeps a history of all searches performed). As we’ve noted before, sampling enables effective testing and refinement of searches and aids in the defense of the overall search approach.
And, of course, documenting all materials and mechanisms used to provide quality assurance and control (such as “materials provided to and used to train the document reviewers, as well as the results of QC checks for each reviewer”) make it easier to defend your approach and even “clawback” privileged documents if you can show that your approach was sound. Mistakes happen, even with the best of approaches.
So, what do you think? These are some examples of important documentation of the eDiscovery process – can you think of others? Please share any comments you might have or if you’d like to know more about a particular topic.
Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine Discovery. eDiscoveryDaily is made available by CloudNine Discovery solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscoveryDaily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.
Browse eDiscovery Daily Blog