The following is Part I in a multi-part series on issue spotting in ediscovery. Being able to identify the issues with existing and any potentially lost data early in your case allows you to understand risks and craft an appropriate strategy for dealing with your client’s data, and what you need to request from the other side and third parties. Each type of data has its own issues to consider, and this series will highlight some of those issues and how you should factor them into your discovery strategy for a matter.
I call How and When to Start understanding the Big Picture for your client and this piece of litigation. The Big Picture drives your discovery strategy. While much of this sounds corporate driven, the same process should be applied to any client.
To start with, the Big Picture for a specific case depends first and foremost on how much you know about the sources of ESI that your client uses to create, send, receive and save data, your client’s business, the industry in which they work (if applicable) and other variables that the litigation will impact. For instance, if the litigation is a small employment matter worth $100,000, the discovery strategy will be significantly different than a bet the company $100 million class action that has massive public relations issues associated with it. And those issues vary based on what side you are on — individual plaintiffs have privacy issues and more often have social media and mobile device data that is key and has to be acted upon quickly.
How to Start — The Client Meeting
With those concepts in mind, the first step is a meeting with the client to understand the scope of the litigation and its potential impact for the client based on the variables outlined above. That impact can be maintaining partnerships, managing public relations, preserving relationships with agencies who may be third parties, etc. Also key is how far the client and counsel think the litigation will progress. What is the likelihood of success on a motion to dismiss? Is it a factual dispute that has to be resolved on summary judgement? Are the parties amiable and open to resolution, mediation or something short of full blown litigation? All of the decisions that you make in creating a discovery plan need to be made with the client’s goals in mind.
Those goals will determine the steps you take and the costs the client wants to incur. For example, if the client and counsel find there is a 70% likelihood of success on a motion to dismiss, but know it will be appealed, meaning it could be years until data is needed, then taking steps to identify, preserve and collect relevant information will be crucial. But whether that data has to be processed or loaded into a review platform that then is costly each month may be able to wait. Keep in mind that NOT looking at the data immediately means you may not identify additional sources of data and potentially miss out on preserving them (think about what you learn about new sources by reading email where a custodian mentions a chat group on Slack, for example). It’s a balance for sure, and one that’s made easier by the more you know about your client’s data structure and use. That knowledge is a crucial component of advising your client on ediscovery strategy.
Again, the Big Picture drives your discovery strategy.
What all do you need to learn at the client meeting? Below is a list from our checklist in eDiscovery Assistant on what you need to learn at that initial meeting. Now, practically speaking, you will likely need multiple meetings with different folks, and you may need custodian interviews to identify all the sources of data. So keep referring back to this list to make sure you have your bases covered:
- Goals for the case, potential PR issues, other issues for the company or industry that need to be considered including the interplay of this litigation with trends happening across the country, other current litigation pending, i.e. the Big Picture. This will evolve as time goes on, so stay in touch with your client to know when the Big Picture changes, and how that will affect discovery strategy.
- Specifics of the case including:
- Where the case is pending. You likely already know this prior to the meeting, but you need to look at the rules for the jurisdiction where it is filed, or where you are contemplating filing to see the judge’s rules on ediscovery, or if the court itself has guidelines. Rocket dockets or cases following the Model Initial Discovery Project move quickly and you need to be prepared for that.
- The name of the judge/ALJ/arbitrator/mediator handling the case. Do your research to understand the judge’s knowledge of ediscovery from other decisions as well as her approach to the issues you’ve identified with the data. For example, in eDiscovery Assistant, you can filter using the judge’s name, and then narrow down using the issue tags to find how your judge reacts to a failure to produce, privilege logs, proportionality, etc.
- Date range covered by the facts of the case. Keep in mind your client will have an idea of this, but you can really only determine a valid range by looking at data and talking to custodians.
- Key Players at the client. This isn’t written in stone and should be validated by your custodian interview process.
- List of persons for legal hold notice and process for creating and distributing hold notice. is this handled internally? If so, counsel should at least review the notice and work with the client to track responses and recipients, as well as whether supplemental notices are sent.
- Third parties that may have relevant data, even if your client won’t send subpoenas. That includes the role of the third party, time frame they were involved, scope of involvement and the name of key players. Notifying third parties of litigation (they likely already know) and what you anticipate them receiving can be helpful and allow you to coordinate the third party providing data in a way that makes it best for all parties, including your client. The incentive for a third party to review data and only provide responsive documents is very low, so you need to manage what you can through counsel. Note that I am in no way suggesting you can influence a third party, just that coordinated efforts can provide better data for all parties.
- Sources of ESI. The initial meeting will outline a preliminary list of sources, but you’ll need to expand on this during custodian interviews and review of the data that may identify additional sources. For each source of ESI, you need a plan for preservation, collection and dealing with that form of data. This includes local sources as well as cloud based sources (think Teams, Slack, mobile data). We’ll touch more on this in subsequent posts in this series.
- Key Players on the other side and at third parties. This comes up more in custodian interviews than at the initial meeting, but you can learn names of counsel for the other side so you can start planning what to look for on a privilege log.
- Immediate data issues that you are aware of. This can be anything from departed employees who are key players to getting data from cloud service providers to systems that are now archived and no longer in use. Identify them early, work through what you need to and have a plan for addressing these in your meet and confer. Identifying them early allows you to research the law and rules and have a plan for what to say vs. being blindsided when a deponent or document suddenly identifies a source to the other side that you failed to mention.
The goal leaving these meetings is to have an overview of what needs to be done, and a plan for how you are going to start. Of course, it will continue to change, but you need a Big Picture strategy and these things will help you formulate one.
When To Start
Immediately. This is one of the theme’s of our #caseoftheweek and it can never be said enough. You need to start as soon as you have an inkling of litigation and understand what issues need to be dealt with for effective and efficient ediscovery. Data is rolling off of systems as I type, and acting quickly is critical to avoiding spoliation for failure to preserve. Wait a month and I guarantee your client will replace their cell phone without transferring data, modify their social media, or the company’s retention policy will wipe out a month of email you needed for the case. While you may be protected from harsh sanctions by the 2015 amendments to Rule 37(e) for failure to preserve, you may actually be missing key data that HELPS your client’s case.
Issue spotting in ediscovery encompasses data issues, strategy issues, knowing the rules, and letting the data tell you what you don’t know. As Judge Schiendlein wrote many years ago and other courts have reiterated, perfection is not the goal. But to do the job that you are required as lawyers to do, you have to start early and ask the right questions.
In our next segment, we’ll tackle what you need to know in the Federal Rules of Civil Procedure that can help you issue spot and plan your discovery strategy effectively.