E-Discovery Best Practices

We’re all familiar with the importance of avoiding the inadvertent disclosure of attorney-client communications, work product or sensitive, proprietary or confidential business information. However, our obligations don’t end there. In addition to protecting this information, we also need to consider how to handle personal identifying information (“PII”). With extremely large amounts of data being at play in most litigation matters, it is becoming more and more important to have a solid game plan with safeguards and protections in place. Accidentally disclosing PII can lead to a chaotic discovery process and could lead to expensive monetary sanctions.

ESI Agreements cover the full gambit of e-discovery issues, from preservation expectations to production specifications. Sometimes, these agreements include an overview of the process by which the parties will identify the universe of potentially responsive documents by using specific date ranges, identifying priority custodians and developing proposed search terms. Adding another layer of complexity, this discussion is often had in a vacuum before the parties even know how much data their clients have. Coming up with criteria that identifies the relevant documents, but is not overly broad, in this vacuum can be difficult. However, the process is important because the date range, custodians and terms will inevitably dictate how much data is collected, processed and reviewed, which can significantly affect any litigation budget.

In Part One of this blog series, I discuss a case that makes clear the importance of complying with discovery obligations. The Court concluded that Plaintiff’s “extensive misconduct and deception, without any obvious contrition or awareness of the wrongfulness of his conduct” posed a serious risk any further proceedings would be “plagued” by a similar pattern of discovery abuse and deception that would make “it impossible for the district court to conduct a trial with any reasonable assurance that the truth would be available” and ordered Plaintiff’s complaint dismissed with prejudice. Indeed, although the old adage dictates that to the victor go the spoils, there are no spoils and no victory for one who engages in spoliation. 

A lawsuit has been filed. Both parties have met and negotiated an ESI Protocol that has been formalized as a court order. Your review team has started the initial review and notices there are numerous duplicates. When this is brought to your attention, you discuss with your litigation support team and they suggest de-duplication and email threading as options. Which of the following would steps would be appropriate? In this blog, we'll dive into the next steps in this scenario and the importance of having an ESI Protocol in place.

Assigning a single unique name to identify an individual has created problems that precede the inception of e-discovery. Think of Santa Claus, St. Nicholas, St. Nick, Noel or simply Santa. These variations are associated with a unique individual and yet, our society has been using different names to refer to him since before we were born. In e-discovery, identifying individuals with information relevant to a dispute is one of the first and most important steps we go through at the inception of a case. As such, the identification of the different names for these individuals is critical to ensuring we do not miss potentially relevant files. 

Two recent decisions highlight the usefulness of phased e-discovery as a tool to satisfy Rule 26(b)(1)’s ever-important proportionality requirement. Model orders for patent cases in numerous courts require phased discovery, typically phasing email discovery to occur after other discovery and only if deemed necessary. However, phased discovery is becoming prevalent in other types of cases as well.