Initial eDiscovery Project Scoping Steps Series, Part 2

A multi-part series providing guidance on how to effectively scope and plan eDiscovery projects

In the first Part of this series, we reviewed the value of preparation, planning, and checklists, as well as the evolving challenges and expectations associated with eDiscovery project planning.  In this Part, we discuss the initial eDiscovery project scoping steps you must take.

Put Your Thinking Caps On

We don’t spend a lot of time talking about imagination in legal practice, but it’s pretty essential to effective project scoping.  Unless you’re working in an eDiscovery operation with Level 5 maturity (i.e., with extensive aggregated data about past projects, matter types, etc.), each new project is going to be fairly opaque to you at the outset.  You will know the general legal subject matter, the essential event(s) giving rise to the issue, and any individually named defendants within the organization.  Beyond that, however, anything and everything (or nothing) might be relevant.

The first step, then, must be brainstorming to figure out what and who might be relevant.  Doing this effectively requires collaborating with: individuals with direct knowledge of the relevant legal issues; individuals with direct knowledge of the relevant factual issues; and, individuals with direct knowledge of the organization’s individual and enterprise IT resources.  Essentially, in-house counsel, outside counsel, internal IT, any external collection resources, and any relevant senior employees all need to be looped into this exercise in imagining what might exist.

Starting with what you know about the type of matter, the underlying facts, and the key players (typically based on a complaint or preservation notice), you and your collaborators must extrapolate what types of relevant materials are likely to exist within the organization and where (or in whose custody) they are likely to be.  This should include consideration of both the information and materials you will want to see and use and the information and materials you anticipate the opposing party will request.  This is the general flow of inquiry:

• What events are in dispute or under investigation?
  • What questions do you have about those events?
    • What materials might help you answer them?
  • What questions are parties-opponent likely to have about those events?
    • What materials might they imagine exist and request?
• What are the elements of the legal claims and defenses in the matter?
  • What types of documentary evidence might help establish or refute them?
    • Where or in whose custody might such evidence be?

This process can be aided by checklists of potential sources, like those used by some 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:

• Might there be departmental records, like HR files?
• Could there be useful data about the events in your ERP systems?
• Would employees have discussed the events via the internal chat client?
• Maybe the relevant office used shared network folders?
• Perhaps copies of deleted records exist on the back-up tapes?

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 searching for them in a collected data set:

• Are you seeking evidence of intent in communications between certain employees?
• Are you looking for evidence of internal awareness in executive meeting minutes?
• Will relevant documents contain certain keywords, like a name or project code?
• Are you looking for contracts executed with a particular party or on certain dates?
• Are you looking for metadata evidence of an employee altering key documents?

Having some ideas about distinctive characteristics of this type will be helpful to you as you move on to the investigation activities we will discuss in the next Part.

Then, Put Your Sorting Hat On

Once you have finished your brainstorming exercise and have a list of potentially-extant relevant materials, likely places to look for them, and distinctive characteristics you might use to identify them, your next step is to prioritize these potential materials, sources, and custodians to guide your subsequent activities and allocation of resources.  Prioritization of the items on your list – whether they are IT systems, departmental systems, or individual custodians’ devices – should be done based on three key criteria:

1. How likely it is that the source actually contains relevant materials
2. How important and useful those materials would be, if they do exist
3. And, how likely those materials are to be requested by parties-opponent

Obviously, the greater the likelihood it exists, the greater its potential utility, or the greater the likelihood it will be requested, then the greater its priority should be (with items that score high on all three metrics at the top of the list).

Typically, practitioners then break the prioritized list of potential sources into three tiers that will each receive similar treatment during the steps to follow:

• Tier 1 – Sources/materials that must be sought (key custodians)
• Tier 2 – Sources/materials that may need to be sought (secondary custodians)
• Tier 3 – Sources/materials that may not need to be sought (tertiary custodians)

Once you have completed this prioritization and grouping, you are ready to begin the investigation activities we will review in the next Part.

Initial Scoping Checklist

As we noted in the first Part, checklists are invaluable tools for ensuring consistency and completeness in your efforts.  Here is a model checklist for initial scoping activities, which you can customize for your organization:

1. What are the events at issue, and what are the legal claims?
2. What internal and external individuals should be involved in brainstorming?
3. What questions do we have about the underlying events?  What questions will they have?
4. What materials might answer those questions for us and/or for them?
5. What are the elements of the relevant legal claims and defenses?
6. What materials might establish or refute each of them?
7. What individuals, devices, departments, or systems might contain them?
8. What distinctive characteristics might help you search or filter for them?
9. What is the relative priority of each potential source identified?
10. What grouping into tiers should be applied for planning subsequent steps?

Upcoming in this Series

In the next Part of this series, Investigating Your eDiscovery Project Assumptions, we will move on from initial project scoping activities to a review of your investigation options.