Get Your E-Discovery In Order Early to Avoid Problems Later On

By Adam B. Marks, Esq. Updike, Kelly & Spellacy, P.C.

Every litigator should know that one of the first action she should take when he believes his client may be sued is to send the client a litigation hold letter to ensure that all documents are preserved. Many litigators may not realize is that the next actions he needs to take is to talk to the client about how the client maintains electronically stored information and the type of files that are stored electronically. It is based on this information that the attorney must begin to strategize the manner in which he will handle e-discovery in the case.

It is advisable for an attorney to have a mirror image made of all relevant portions of the client’s server and any personal computers of relevant individuals that may not be fully backed up on the server. By taking these steps, the attorney not only ensures that the electronically stored information is preserved, but, almost as importantly, all of the metadata from those files will be preserved as well.

Depending on the capabilities of your firm’s IT department, you may need to engage a vendor to copy the files. Depending on the total size of the files that need to be stored, you may not be able to host the documents locally and instead will be required to obtain extra storage or pay for cloud-based storage.

The monetary cost is also substantial, but this is something that an attorney needs to address with a client. Whether you are considering bringing a lawsuit or your client has been sued, the budget for bringing or defending the case must take into account substantial e-discovery costs. Gathering data, storing data, reviewing data, and producing data is not cheap, but it has become part of the cost of doing business.

But the cost is not without a benefit. By obtaining access to all of the relevant files in their native form, the attorney is able to save money in the review and use of the electronically stored information. Depending on the electronic review software, the attorney may be able to run advanced word searches or technology-assisted review, to efficiently locate, review, and produce the necessary documents.

Based on how an attorney is able to preserve his client’s electronically stored information, he should next consider the negotiation of an electronically stored information protocol with opposing counsel. By preserving the metadata, he can easily agree to cull the entire corpus of documents to a certain date range or certain individual custodians. He can agree to further cull the documents through relevant word searches or using technology-assisted review.

However, no amount of technology will fully replace attorney review of the documents to be produced for relevance, confidentiality, and privilege. While date ranges and predictive coding may greatly reduce the number of documents to review, it is necessary and certainly the best practice for attorneys to review the culled down set of documents prior to production.

The proliferation of technology has had far reaching effects on discovery. Although the use of email and the ability to save a seemingly limitless number of electronic files have resulted in daunting numbers of documents to gather and review, the use of electronic review software has helped attorneys strip away a great percentage of the irrelevant information. The steps outlined above may not be right for every case, but the message is clear: e-discovery is a necessary part of litigation and needs to be considered at the outset of every case.