In discovery specifically, and in legal practice generally, the role of electronically-stored information (ESI) and new technology has grown exponentially over the past decade. As a result, it has become a practical reality that effective legal practice and effective discovery requires some level of technology literacy and competence, and since 2012, that practical reality has been slowly transforming into a formal requirement.
The duty of (identification and) preservation is a foundational concept in our legal system that grows out of the common law concept of “spoliation,” which is more than 200 years old. As we have seen in numerous contexts, however, ESI spoliation remains a frequent issue. Hence the importance of the Identification and Preservation phases in an eDiscovery effort: almost every other type of failure can be fixed with adequate time and money, but once unique, relevant ESI is gone, it’s gone.
As ESI has become the norm, competence with technology has become an essential part of being an effective legal practitioner, and understanding the technology fundamentals of collection has become essential to fulfilling a lawyer’s duty of technology competence. In this series, we discuss collection fundamentals, including: the scope of collection, how data is stored and recovered, available collection tools and methods, the importance of metadata, forensic soundness and chain of custody, and more.
Collection activities are usually among the first expenses in any eDiscovery project, inseparable from identification and preservation, the three activities together creating the foundation for all the work that follows. Although that subsequent review and production work typically costs far more, those initial collection expenses are often treated as something to be minimized or avoided. Particularly at a time when legal departments and law firms alike are looking to tighten their belts, collection can seem a tempting place to take shortcuts in the name of savings. Not all shortcuts are created equal, however, and self-collection is one that should almost always be avoided.
ESI processing for discovery is one of the areas in which legal practitioners need some knowledge to fulfill their duty of technology competence. Although it is often given short shrift compared to the steps that come before it and after it, effective processing is critical to the success of those downstream steps and includes a variety of important technical decisions that can have substantive effects. In this series, we will review fundamentals legal practitioners need to know about processing, including: essential steps and tools, common errors and special cases, de-NISTing, deduplication, objective culling, and more.
The fog of war is apt shorthand for the state of uncertainty that exists early in a new legal matter. Whether you are gearing up for litigation, an agency enforcement action, or an HA, you are faced with potential conflict and liability shrouded in a fog of uncertainty. Early case assessment (ECA), fundamentally, is the process of trying to clear as much of that fog as possible. As litigation has evolved in the eDiscovery era, however, so too has the scope of what’s included in ECA.
Numerous analyses have established that document review is the most expensive discovery activity, consuming an estimated 58-73% of the total amount spent to produce. The reason for these significant costs is the irreducible need for qualified people to spend time looking at a significant number of documents to make nuanced determinations about their relevance, their privilege, and much more. In this series, we break review down into five subparts and discuss each in turn to help prepare you to meet its challenges: what gets reviewed, for what it gets reviewed, by whom it gets reviewed, workflow design considerations, and quality control.
We turn our attention now to the final pre-trial phase of an electronic discovery effort: production. It is important for practitioners to understand the range of possibilities and their differing requirements, limitations, and implications, because the way materials are produced affects how much time and effort they take to prepare and how easily they can be searched, reviewed, and used later in depositions and at trial.
Planning an eDiscovery project is a challenging process that overlaps and intersects with other early project activities, but investing the time and effort required for effective planning can produce downstream benefits of saved time, saved money, reduced risk, and increased defensibility. In this series, we discuss effective eDiscovery project planning, including: initial scoping activities, investigation activities, volume and cost estimation, roles and communication, and detailed checklists for each.
Legal holds remain a common source of issues for litigants, particularly with regard to spoliation and the question of reasonable efforts to preserve, and rapidly evolving sources and custodian behaviors are creating new challenges. In this series, we review how to achieve effective, consistent holds for your organization, including: the duty of preservation and its triggers, required elements of an effective hold, relevant processes and policies, tools for hold issuance and tracking, and other issues.
Custodian interviews are not part of the typical law school curriculum, but they have become an essential skill for attorneys and other eDiscovery practitioners. As the first opportunity in an eDiscovery project to lift up the rock far enough for a peek at what’s underneath, custodian interviews are a vital and valuable data gathering step. In this series, we review what they are and why they matter, determining who should be interviewed, creating an interview script, and interview format options.
If you want to reduce the cost of discovery, reducing the volume of documents to be reviewed, by targeting the right ones in each prior phase, should be a high priority. To more-narrowly target the right data prior to review, there are a range of tools and techniques available to you. In this series, we review the data targeting options available before litigation, during collection and restoration, during processing, and during early case assessment and review preparation.
Despite years of discussion in the eDiscovery industry about the power and importance of sampling techniques, many practitioners remain unfamiliar with what they can accomplish with them and when, outside of TAR, they might do so. In this short series, we focus specifically on the process and applications of estimating prevalence, from winning a candy contest, to planning at the beginning of a project, to checking completeness at the end.
Beyond estimating prevalence, there are other opportunities to replace informal sampling of unknown reliability with formal sampling of precise reliability. Imagine iteratively refining searches for your own use, or negotiating with another party about which searches should be used, armed with precise, reliable information about their relative efficacy. Using sampling to test classifiers can facilitate this.
The majority of eDiscovery work takes place in the context of litigation, but a significant amount of it takes place instead in the context of investigations, where time pressure can be greater and bad actors may work against your efforts. In this series, we discuss eDiscovery investigation issues, including: the need for speed and secrecy, the challenges of nuanced analysis and review, the importance of preparing for later litigation, and challenges created by modern technology.
Today, smartphones are owned by more than 198 million people in the United States, meaning the vast majority of key players and other custodians will have one in their pocket. As a result, mobile devices are turning up frequently as relevant sources in litigation. In this series, we explore what kinds of materials they contain, available collection options, management and review challenges, and relevant case law on the discovery of mobile device data.
Social media is currently an influential, indispensable part of American life. Unfortunately, the nature, diversity, and volume of social media data present a variety of challenges – both technical and legal – for discovery practitioners. In this series, we explore those challenges and the ways they can be met, including: what sources there are, what data they actually have, how it can be preserved and collected, how it can be authenticated for admission as evidence, and what other issues it raises.
On December 1, 2015, an amendment to Federal Rule of Civil Procedure 26(b)(1), which defines the scope of discovery, became effective. The change brought the existing-but-overlooked concept of proportionality front and center in an attempt to combat the runaway cost and scale of discovery in the digital era. In this series, we survey proportionality decisions and relevant publications from the past three and a half years to learn how this amendment has actually affected the scope and process of discovery.
Over the past nine years, TAR has been joined by CAL, LSI has been joined by SVM, and case after case has joined the pile exploring issues with TAR usage. All of this rapid technical and legal evolution has made it challenging for practitioners to get a simple handle on TAR and what it means for their projects. In this series, we explore common questions and key cases to better equip practitioners to leverage TAR in their matters.
On December 1, 2015, the most significant amendments to the Federal Rules of Civil Procedure became effective since the 2006 amendments that made the eDiscovery era official. Among the rules revised was Federal Rule of Civil Procedure 37, which governs discovery failures like spoliation and the associated sanctions. Among the changes was made was the replacement of the 2006 version of FRCP 37(f) with the new 2015 version of FRCP 37(e).
Beginning proactive management of your overall eDiscovery program can lead to significant increases in efficiency, reductions in cost, and improvements in defensibility. In this series, we discuss a range of program management considerations, including: evaluating and improving readiness; evaluating needs and resources; insourcing, outsourcing, and service models; evaluating potential service providers; useful metrics to track; and, ongoing program maintenance and improvement.
Cryptocurrencies have exploded in popularity and number, driven in large part by the phenomenal price growth of Bitcoin. In this series, we review five things for practitioners to know about it, including: what it is, how it works, why people use it, what’s happening legally, and what the discovery implications are.