Post Process

Everything to do with E-discovery & ESI

The complexities of e-discovery: In the beginning

Posted by rjbiii on September 25, 2007

Yet another new series: Effectively Managing E-Discovery. This is the first installment.

Complex discovery projects in this digital era can intimidate attorneys and their clients alike. One reason for this is because that electronic discovery requires an understanding across several disciplines. Law, IT, records management, and compliance are some of those areas of knowledge from which any discovery team should draw. It is difficult for any one individual to have sufficient knowledge across all these areas, so communication between experts from these professions becomes important. And we all know that lawyers and IT people communicate with each other effortlessly, don’t we?

Even in the IT sector, electronic discovery can call on different knowledge bases. Archiving, back-up and restoration might be needed at the collection point in the process, while a programmers knowledge of file formats will be useful downstream during the processing of evidence; an expert in search engines might be needed to help cull down the data to a manageable size for “eyes on” review by attorneys; a dba might be needed to analyze and extract data from a customized database…the scenarios are endless.

Before we go further, we must also acknowledge that their is some abiguity with regard to when a “discovery project” actually begins. The legal standard is “reasonable anticipation” of litigation. There are a number of events that may trigger the “duty to preserve,” and some of those have been listed in under the duty to preserve tag. Because what creates this reasonable anticipation can take an infinite series of forms, there is no, and will never be, a complete list.

Any discussion on the complexities of a particular project begins with the IT enterprise housing the data. Before you can collect data, you must insure it is preserved. Before you can preserve it, you must identify which data sources (or custodians) possess relevant information. And this identification process is tied to such things as network topology, which users are involved in the projects associated with the pending litigation, and what practices are implemented by these custodians in storing their data. Merely identifying the appropriate custodians requires a knowledge of the legal nature of the dispute (is this IP, employment dispute, white collar crime?) and the nature of personnel assignments within the company. Who works on what projects? If some of the custodians have administrative assistants or secretaries, you can’t forget about them!

Issues that are dealt with include legacy systems, password protection, encryption, storage habits (how often are items backed up, restored, etc…), unmapped partitions, expensive or proprietary application formats (that e-discovery vendors will be unable to process). Are there any mirrored, or collocated servers?

Then, there are situations in which storage has been outsourced. What are the policies and procedures of wading through that data?

One worry of discovery team members is whether the scope of discovery goes beyond the bounds of the business’s IT enterprise. What would cause that? Well, mixed personal and business use on the same computer. Do users work at home on their own machines? Do employees use private, external e-mail accounts to send and receive work-related documents? Are “retired” computers given away without being wiped? Practices such as these expand the scope of scrutiny beyond the bounds of the company’s IT universe, and the prevention of these situations is best addressed in a company’s “acceptable use” and “document retention” policies.

Once data sources are identified, and effective measures implemented to preserve the data, a collection process that is defensible in court must be designed. Outside counsel, after addressing these issues with their own client, must also then assess the opponent’s data universe in the same manner, assuming that they will be requesting documents as well. So while outside counsel, playing offense, is trying to get a feel for how to get to the adversary’s documents, General Counsel is usually confined to playing defense, and making sure its own house is in order. Much of the GC’s best work can be done before any dispute hits, in implementing policies and processes smoothly integrate litigation holds and defensible collection into the data retention practices of the company. To insure a smooth handoff from GC to outside counsel, communication between the two is another critical component to a successful discovery project.

These factors must be looked at early on in the process. Some of them should be examined before the emergence of any dispute. I’m sure there are more issues early on, and any war stories are welcome. I’ll examine vendor management in my next post under this topic.

3 Responses to “The complexities of e-discovery: In the beginning”

  1. […] and librarian scientists. As we’ve posted before, electronical discovery brings the need to access knowledge from across several disciplines. Attorneys often drive the process, and for good reason. For a large or complex project to be […]

  2. […] it all comes down to, as we’ve posted earlier, is that electronic discovery requires a bit of knowledge from several different disciplines, good […]

  3. […] have noted the complexities associated with electronic discovery before: [E]lectronic discovery requires an understanding across several disciplines. Law, IT, […]

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