This year has been one for the history books, to say the least. Despite all the economic slowdown due to the pandemic, decisions on ediscovery issues are through the roof. As I type, eDiscovery Assistant has added 1655 decisions to our case law database issued since January 1, 2020, and the pace shows no signs of slowing down.

As our team has reviewed case after case, a theme arose — it’s become more important than ever that counsel begin tracking their ediscovery timeline. What do we mean by “ediscovery” timeline?  We mean ALL of the events that you undertake that impact the ediscovery process.  That includes, at a minimum, the date that triggers the duty to preserve (or a series of possible dates), when you notify counsel of specific obligations, follow up on requests to inspect data or premises, letters to counsel, emails to your client and when legal holds go out and are released, when preservation is put in place on specific systems. Everything.

Why?  Because every discovery decision focuses on dates. It’s our ediscovery version of the dating game: the date a party reasonably anticipated litigation to trigger the duty to preserve, the date the legal hold notice went out and when it was acknowledged by a particular custodian, the date a cell phone was lost (before or after the hold notice or preservation date?), the date a social media profile was changed, deleted, captured, etc. They all matter, and at some point in the litigation, you’ll need to have them all handy to draft a letter, motion, or advise your client on liability.

Let’s take a few examples just in the last 10 days:

  • In Jarvis v. TaylorChandler, LLC, the plaintiff failed to preserve documents. In analyzing whether bad faith was involved to determine sanctions, the court looked at the date of termination, when the plaintiff anticipated litigation, and several other dates (including when a shredding company came) to identify the pattern of behavior and intent.
  • In Format Furniture v. Hartzell, the court looked at the timeline of events to determine whether the value of furniture destroyed by a water leak in a retail store could be recovered. Plaintiff had to remove the furniture from its location due to space, and despite multiple efforts to have the defendant inspect it, the furniture was sold or destroyed before inspection. The dates of each of the letters sent by plaintiff’s counsel factored heavily in the court’s decision (also that there was other evidence to show the value and damage).
  • In Adoue v. Paul Revere Life Ins. Co., the court examined the timeline for discovery responses, its orders and then the proportionality considerations on a motion to compel.

Really think about this.

Every time you draft a motion, your facts detail the dates things happened, whether they are facts in the case, or the timing of events in the litigation. Dates are important in determining whether documents between counsel go on a log (usually not after litigation is filed), when documents have to be produced (via FRCP or court order), the close of discovery, when witnesses will be deposed, etc.

Litigators live and die by the calendar in a case. eDiscovery events need to be added to that calendar of dates you are tracking. Here’s a list of some of the events to track for every case. Of course, your case will have its own specific requirements that impact discovery issues like failure to preserve:

  • when plaintiff reasonably anticipated litigation and why (date of notice, filing of complaint, hiring of counsel)
  • when defendant reasonably anticipated litigation and why (date of notice, filing of complaint, hiring of counsel)
  • the dates of preservation of each source of data (email system, social media, individual computers, mobile devices, paper etc.) — hint, it’s easiest to organize this info by custodian, and have a separate custodian for the client (i.e. ABC Corporation) for enterprise wide sources
  • the dates of collection for each source of data (just like for preservation) — some times these dates are the same, if so, note them separately
  • when the legal hold was sent out, with list of custodians, responses, dates of responses and any supplemental hold that is sent out
  • Employment dates for key custodians (let’s you keep track of why you have a different timeline for data for each custodian)
  • Court ordered dates for production
  • Specific fact dates uncovered in any forensic examination that impact the potential for discovery issues (date wiping program used, data downloaded to USB, etc.) — this is most key in fraud investigations, theft of trade secrets, etc.
  • Custodians and categories of documents produced in a specific production (keep a separate production chart that you can refer to that let’s you jump to finding when a document or category of documents were produced quickly if you don’t have a bates number)
  • Date of requests for depositions and documents for witness being deposed
  • Date requests received and follow up with client to provide data
  • Case specific issues like date patent took effect, etc. that will impact preservation obligations
  • Dates identified through production of documents that tell you when opposing counsel preserved or collected data

Timing in discovery is everything. We now have to sift through hundreds of thousands of documents we don’t need to find the stuff we need for a case, and managing the discovery process is hard. The level of detail has amped up a thousand times. Make it easier on yourself to be able to have the dates and facts you need at your fingertips.

It doesn’t need to be complicated. Use a spreadsheet or a document, and make it a team member’s task to keep it up to date when letters, emails or orders come in that impact the schedule.

Tracking your ediscovery timeline saves time and money. The first you don’t have, and the second your client would like to save. But it also gives you the tools to make decisions quickly about whether there really is a basis for a motion to compel or for sanctions. Both detract substantially from litigating the merits of a case, and are expensive. As we saw in a recent post, counsel aren’t always evaluating the landscape before drafting those motions. An ediscovery timeline will help.