A multi-part series on the fundamentals eDiscovery practitioners need to know about the processing of electronically-stored information
As we have discussed before, the importance in discovery of electronically-stored information (ESI) and the tools for dealing with it have grown exponentially over the past decade, making some level of technology literacy and competence a practical requirement for competent discovery – and for legal practice generally. And, since 2012, that practical reality has been slowly transforming into a formal requirement.
In August 2012, the American Bar Association (ABA) adopted updates to its model rules to make the need for technology competence explicit. Model Rule of Professional Conduct 1.1 establishes a lawyer’s general duty of competence in their work, and the last Comment to that rule covers “Maintaining Competence” over time through continuing legal education (CLE), individual study, etc. The new updates amended that comment to explicitly add technology:
To maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology, engage in continuing study and education and comply with all continuing legal education requirements to which the lawyer is subject. [emphasis added]
In the six years since the change to the Model was implemented, thirty-five states have adopted some form of technology competence requirement for lawyers, with some adding CLE requirements or enumerating specific eDiscovery or communication requirements for the fulfillment of the duty.
ESI processing for discovery is one of the areas in which legal practitioners need some level of technology competence to fulfill this duty. Although it is often given short shrift compared to the steps that come before it (preservation and collection) and after it (assessment, review, and production), effective processing is critical to the success of those downstream steps and includes a variety of important technical decisions that can have substantive effects.
As we have discussed in our series on mobile devices, our series on social media, and in other articles, the range of potential ESI sources is continually multiplying and diversifying. In order to work with that diverse range of materials during assessment, during review, at depositions, and at trial, we need a way to avoid using as many different pieces of software as there are types of sources and a way to enable searching and document identification across different source types. It is for these reasons that we need processing. And, if that processing is not performed correctly, or if the wrong decisions are made, searches can be rendered unreliable, materials can be rendered unusable, and other downstream complications may occur.
The importance and complexity of processing can be seen in the level of detail involved in written processing specifications (or production specifications, which can effectively dictate how processing must be performed to facilitate the required production). Although not all cases involve a written set of processing or production specifications, many now do – some developed through negotiation and others dictated by agencies or courts. These specifications may set forth, among other things:
Any one of these details could have a significant impact on the usability of the processed materials and on the effectiveness and efficiency of the downstream discovery activities – both for your work with your own materials, and for your work with the materials that are produced to you by other parties (an area in which disputes still frequently arise).
In this series, we will review the fundamentals that legal practitioners need to know about ESI processing to successfully navigate this phase of discovery and to effectively work with their internal or external service providers to do so. Topics will include: essential steps and tools, common errors and special cases, de-NISTing, deduplication, objective culling, and more.
Upcoming in this Series
In the next Part, we will discuss the essential steps involved in ESI processing and some of the tools used to complete them.