A multi-part series on the fundamentals eDiscovery practitioners need to know about the identification and preservation of potentially-relevant ESI
In “In the Beginning,” we reviewed the importance of effective identification and preservation as well as the triggers for doing so. In “Legal and Technological Scope,” we reviewed the scope of what must be identified and preserved. In this Part, we discuss the first steps for identification.
Now that we have reviewed the importance of performing effective identification and preservation and discussed the potential legal and technological scope of what we might need to identify and preserve, we are ready to start discussing the actual identification process. We’re going to break down the identification process into two parts: imagination and investigation.
We don’t spend a lot of time talking about imagination in legal practice, but it’s pretty essential to effective identification. Each new discovery project can be fairly opaque at the outset. You may know the main issue and underlying event, but you may not know much beyond that about the relevant individuals, the various potential claims and defenses, etc. All of that knowledge will only be developed as you proceed with the project.
The first step, then, must be brainstorming to figure out what and who might be relevant. Doing this effectively requires collaborating with:
Essentially, in-house counsel, outside counsel, internal IT, any external collection resources, and any relevant senior employees all need to contribute to this effort. Starting with what you know about the type of matter, the underlying facts, and the involved individuals, you must extrapolate what types of relevant materials are likely to exist within the organization and where (or in whose custody) those materials are likely to be.
This process can be aided by checklists of potential sources (like those used for custodian surveys/interviews), but it is a fundamentally imaginative exercise: imagine the events at issue in the context of normal organizational operations and think about what might have been generated. For example:
Additionally, it is beneficial to imagine what distinctive characteristics relevant materials from these sources might bear, i.e. how you would try to find them if running searches for them:
Having some ideas about distinctive characteristics of this type will also be helpful to you as you move on to investigation and preservation.
A key part of this exercise is figuring out who your key players are likely to be for the matter. Key players are those with the direct knowledge of the underlying events and those most likely to have relevant materials. The phrase rose to prominence after Zubulake V in 2004, which used it to describe the essential recipients of a legal hold within an organization.
In addition to the individual employees, managers, and executives involved in the events underlying the matter, it is also critical not to forget other types of important players that may be in possession or control of relevant materials:
Completing your initial brainstorming by making a list of all your expected key players – including important enterprise, departmental, or third party players – will help prepare you for the investigation and preservation steps that come next.
Upcoming in this Series
In the next Part, we will continue our discussion of identification and preservation fundamentals with a look at the investigative aspects of identification.