Basics of E-Discovery
Welcome to the second edition of Exterro's Basics of E-Discovery guide.
In the early days of e-discovery, companies typically outsourced most activities to third parties, namely law firms and service providers, who actually did the e-discovery work. A significant legal trend in recent years has been an increase in the number of companies attempting to bring more of the e-discovery process in house.
Why the shift? Money is a big reason. Following the severe recession in the late 2000s, many corporate law departments were forced to tighten their belts and look for ways to cut spending. E-discovery quickly rose to that top of the list. A 2012 study by Rand Corporation, “Where the Money Goes," found that outside counsel typically consumed about 70 percent of total e-discovery expenditures, with vendors and service providers accounting for another 26 percent. Companies realized they could control these costs more easily if they performed more of the activities themselves. And they have done so. Exterro's 2017 In-House Legal Benchmarking revealed that 51% of legal departments are now performing a majority of their litigation work in-house.
There was another big benefit as well. Besides simply saving money, there is growing acceptance among the legal community that e-discovery is as much a business process as it is a legal procedure. (Check out this E-Discovery Maturity Model as a handy visual reference). When you apply the discipline of process orchestration, you gain transparency, predictability and defensibility of your actions.
It's important to remember that there will never be one correct way to handle e-discovery. Companies face different challenges and conditions that impact how they approach these tasks. A few of the factors that influence the e-discovery process include:
E-Discovery Process Influencers
Size and nature of company
Larger companies tend to deal with a lot of litigation, often many hundreds of lawsuits every year! Not surprisingly, these companies tend to have more formal processes around e-discovery since demands are more routine than a company that only deals with a handful of lawsuits a year.
Industry
E-Discovery isn't just all about litigation. Companies, especially those in highly regulated industries such as finance or energy, are frequently compelled to turn over ESI as part of government investigations or audits and will likely need processes for handling such requests. Government agencies face e-discovery challenges as well, responding to Freedom of Information Act (FOIA) and public records requests.
Data Infrastructure
A company's e-discovery process is inherently tied to the nature of its corporate systems and data repositories. Is data centralized or widely dispersed? What are the data retention policies and how are they enforced? Are there dedicated internal IT resources to handle e-discovery tasks? Answers to these questions will help define the ultimate e-discovery process. We will address questions in the context of specific e-discovery tasks throughout this guide.
Electronic Discovery Reference Model (EDRM)
Any discussion of the e-discovery process has to start with the Electronic Discovery Reference Model (EDRM). The model is so ubiquitous it practically functions as a logo for the entire e-discovery industry. Created in 2005 by e-discovery experts and consultants, George Socha and Tom Gelbmann, to address the lack of standards in the e-discovery market, the EDRM provides a visual framework for the e-discovery process.
The EDRM features nine distinct e-discovery "stages" connected by arrows to indicate the sequential and iterative nature of e-discovery activities. People often describe the EDRM as having two distinct sides - the left side, process-centric stages which include information governance, identification, preservation, and collection; the right side, data-centric phases which include processing, review, analysis, production, and presentation.
Below is a quick summary of the EDRM stages (we dive into these in much greater detail later in the guide).
Information Governance (IG)
IG refers to the set of policies, procedures, processes, and controls implemented to manage a company's information. It's a bit misleading to include information governance as a individual stage in the e-discovery process. In reality, e-discovery is part of IG, not the other way around (it even has its own Information Governance Reference Model (IGRM)). IG serves as the foundation for the e-discovery process. Best practice information governance strategies drive successful, efficient, proportional e-discovery processes throughout the EDRM.
Identification
As soon as litigation becomes reasonably foreseeable, parties have a legal duty to preserve relevant ESI (more on that in the Rules and Case Law sections below). But before they can preserve anything, they have to determine what's relevant. E-Discovery teams use a variety of methods to identify sources of potentially relevant ESI, including reviewing case facts, interviewing key players, and assessing the data environment.
Preservation
After relevant ESI is identified, it needs to be protected from "spoliation" – the legal term for any destruction or alteration of evidence. While there are different ways to preserve ESI, the most common is through a legal hold process. A legal hold is a formal communication sent from the legal team to relevant data owners (known as "custodians") instructing them not to delete certain ESI.
Collection
Relevant ESI ultimately must be gathered and centralized. We won't get into the host of collection methods and technologies here, but the important thing to know is that whatever approach is taken must be legally defensible, meaning it must ensure that the contents and metadata (key attributes of the data such as date created and file size) aren't altered as a result of the collection process.
Processing
The processing phase involves preparing collected ESI for attorney analysis and review. Typically performed by specialized software, processing might entail extracting files from folders, deleting meaningless system data, or converting certain file formats in preparation for attorney review.
Review
By far the most expensive of the e-discovery stages, review involves evaluating ESI for relevance and attorney/client privilege (this ESI is exempt from e-discovery). Organizations typically outsource review to law firms. However, new technologies allow in-house legal teams to use artificial intelligence (AI) tools to to distinguish between relevant, non-relevant, and privileged documents. These tools save time and money, making internal review much more viable.
Analysis
At the highest level, analysis deals with evaluating ESI for content and context, including key patterns, topics, people, and discussion. You may be thinking, "shouldn't we do that in many stages?" If so, you'd be right, and the experts at EDRM would agree with you. In fact, they write, "while Analysis may appear on the EDRM Framework after Review, it is really deployed in many phases of discovery as well as pre-discovery."
Production
ESI determined to be relevant must be produced for use as potential evidence. E-Discovery rules address how documents must be produced.
Presentation
This involves how electronic evidence is displayed as evidence at hearings, depositions, and trials. The presentation process has changed dramatically since the shift from paper to predominantly electronic evidence. However, because presentation typically happens post-discovery, we won't go over it in much detail in the guide.
While the EDRM is widely used and referenced, it's not without shortcomings. Thus, we believe it's important to keep EDRM in its proper context and remember these important points:
E-Discovery as a unified business process
With the explosive growth in the amount of ESI that companies retain, organizations are finding they can no longer deal with e-discovery on a case-by-case basis or think of the process as a series of disconnected phases. There is growing acceptance among the legal community that e-discovery is as much a business process as it is a legal one. Accordingly, many corporate legal teams are making a concerted effort to move beyond reactive, fractured and fragmented e-discovery processes to an orchestrated e-discovery process that is more standardized, repeatable and defensible.
In practice, this means approaching e-discovery in a more holistic fashion with a greater emphasis on connecting the various steps. While not usually associated with legal practices, fundamental project management principles can and should be applied in the e-discovery arena. Creating much cleaner handoffs between team members as the project advances is among the ways project management promotes e-discovery success. For example, the team members that designate custodians and ask that their data sources be analyzed are typically different from the members who index or collect the ESI, who are typically different from those who conduct the analysis and make recommendations to counsel. Each of these handoffs presents the opportunity for miscommunication, missteps, and missing important ESI.
Here are five key steps to applying a project management discipline to e-discovery:
Define roles
Many, if not most, project mistakes can be traced back to a misunderstanding or miscommunication. Formally defining roles and responsibilities, and building them into the e-discovery workflow showing what, how, when, and by whom things will be delivered, will prevent mistaken assumptions and cause project delays or failures.
Conduct a gap analysis
A thorough analysis of the e-discovery team's capability in meeting project demands and comparing it to what should be expected, given the demands placed upon it by the organization, is the next step. Once complete, this gap analysis will drive the list of improvements needed (technology, staffing, and training).
Develop a remediation plan
Essentially, this is the operations plan for "re-launching" the e-discovery team and making improvements over time. The most important part of this step is obtaining the necessary approvals from sponsors and stakeholders; those bodies will undoubtedly want to examine the plan and identify any weaknesses before giving their approval.
Develop e-discovery guidelines
Create a set of business guidelines that describe step-by-step the actions taken and roles and responsibilities of all stakeholders — legal, IT, records management — that detail how your organization treats e-discovery.
Execute the plan
The final step is to execute the plan for new projects and then begin measuring and improving the quality of project outcomes. Start with a test drive, (a legal hold, perhaps) , then adjust the process, and roll out to other phases of the process.
A final note here is that technology can also play an important role in promoting e-discovery project efficiency. Traditional project management systems can be serviceable but are designed more for traditional projects that are less nuanced and have more defined inputs, outputs, and timelines than the typical e-discovery project. You are better served looking into project management technologies that are specifically designed for e-discovery, such as Exterro's E-Discovery Project Management application.
E-Discovery Rules
For many years, it was essentially the Wild West as far as e-discovery rules and standards were concerned. The Federal Rules of Civil Procedure (FRCP), which govern all elements of civil litigation processes, addressed legal discovery in the broader sense but had nothing specifically related to e-discovery or ESI. The absence of any specific language created a great deal of uncertainty and, frankly, led to a lot of chaos as cases evolved to include and then exclusively involve electronic information.
That changed in 2005, and again in 2015, when the FRCP were amended to address e-discovery as a distinct element of civil procedure. The "e-discovery amendments" as they're often referred are spread across different areas of the FRCP. As you might well imagine, the FRCP itself is a formal legal document that challenges the attention span of even the most ardent legal scholars. That's why we're here! Here is a brief rundown of some of the key changes:
FRCP 1
Although not specifically an e-discovery rule, Rule 1 governs the entire FRCP. Its purpose is to "secure the just, speedy, and inexpensive determination of every action and proceeding." With the potential for e-discovery costs to balloon out of control after the 2005 amendments, courts are using Rule 1 to push for cooperation as a means to expedite fair and efficient legal matters.
FRCP 16
In a nutshell, this rule basically requires that attorneys come into pretrial conferences informed and prepared their client's IT and data environment, so they can properly scope e-discovery processes. By setting a timeline for pre-trial matters, it helps control e-discovery costs for litigants.
FRCP 26
This one covers a lot of ground, much more than we'll get into here. In the 2015 FRCP amendments, Rule 26's emphasis on proportionality increased. The Rule requires parties to keep their discovery requests reasonable and proportional to the matters at hand. It requires counsel to understand the ESI relevant to the case early in the process in order to create and share discovery plans at "meet and confers," saving everyone involved time and money.
FRCP 34
In recognition of the often contentious nature of e-discovery, this section of the FRCP was modified to establish a more structured way to prevent and resolve disputes. It governs the form of production and requires specificity and timeliness in requests (and objections), forcing counsel to understand the matters at hand and not to rely on boilerplate language.
FRCP 37
This final one is a biggy. It gives judges the power to sanction parties for failing to produce relevant documents. It also establishes circumstances by which a party cannot be punished for failing to produce ESI. The 2015 amendments made clear that "reasonableness," not perfection, is expected in preserving ESI. Parties must make reasonable, good faith efforts to preserve and produce ESI to remain on the right side of Rule 37.
EXPERT PERSPECTIVE
You Have to Know How to Use the New Rules
The new rules are a tool but so is a chainsaw. You have to know how to use it. The key is, as always, having sufficient technical competence to assess what is proportionate to the case, a question that cannot be answered unless you know how to use the available technology to get what you need at the least possible cost.
John M. Facciola
Retired U.S. Magistrate Judge,
Adjunct Professor of Law, Georgetown University
One final note on e-discovery rules, in addition to the FRCP, the Federal Rules of Evidence (FRE) also address e-discovery. FRE 502 protects attorney-client privilege and provides some protection against inadvertent disclosure of ESI in the following ways.
FRE 502(b)
If attorney-client privileged or work product protected material is inadvertently disclosed, you might be able to get it back if you took reasonable steps to prevent the error and responded promptly to fix the error.
FRE 502(d)
Allows parties to enter "claw back" agreements during discovery so that if privileged information is unintentionally revealed during e-discovery, it cannot be used against either party. It also prevents both sides from having to engage in filing motions to get privileged information returned. Hon. Andrew Peck, US Magistrate Judge, Southern District of New York (ret.) famously goes so far as to argue that not obtaining an FRE 502(d) agreement is malpractice in his Exterro-Georgetown University edTalk!
E-Discovery Case Law
Rules help address fundamental issues around e-discovery, but they carry inherent limitations when it comes to guiding specific e-discovery processes. For example, the FRCP doesn't even explicitly address data preservation leading up to trial.
E-Discovery practices are still largely dictated by judicial precedent rather than by statutes or rules. There are some terrific resources that look specifically at e-discovery case law, including K&L Gates' Electronic Discovery Law, Gibbons' E-Discovery Law Alert, and Exterro's Simplified E-Discovery Case Law Library. Every year, Gibson Dunn releases a Year-End E-Discovery Update that covers case law trends. You can also visit Exterro's Simplified E-Discovery Case Law Library to get easy to read, quick case law briefs on the most important, recent e-discovery rulings.
Here are three important federal cases to know which helped create case law precedent that every e-discovery professional should know. We won't dive into the actual facts of each case, just the e-discovery takeaways. You can click on the linked case names for access to the rulings themselves:
CASE ONE
Zubulake v. UBS Warburg (S.D.N.Y. 2003)
Groundbreaking case that addresses destruction of electronic data.
For all intents and purposes, the rulings in Zubulake put e-discovery on the map. (Read a great summary of the case from ABA Journal marking its 10 year anniversary.) On its surface, Zubulake was an unexceptional employment discrimination case. Then it was discovered that the defendants deliberately destroyed electronic evidence and demonstrated little care in preserving potentially relevant documents. In a series of groundbreaking and somewhat unexpected rulings, U.S. District Judge Shira Scheindlin levied heavy sanctions for the destruction of evidence, fundamentally changing the way lawyers and organizations look at e-discovery. The Zubulake decisions (there were five separate ones in total) tackled a host of issues that hadn't previously been addressed by any federal court, establishing important new standards that precipitated the 2005 FRCP e-discovery amendments, including:
- The scope of a party's duty to preserve electronic evidence during the course of litigation
- Lawyers' duty to monitor their clients' compliance with electronic data preservation and production
- The ability for the disclosing party to shift the costs of restoring "inaccessible" ESI to the requesting party
- The imposition of sanctions for the spoliation (destruction) of electronic evidence
CASE TWO
The Pension Committee of the University of Montreal Pension Plan, et al. v. Banc of America Securities LLC, et al. (S.D.N.Y. 2010)
On bad faith or gross negligence in identification, preservation, and collection of ESI
Six years after her rulings in Zubulake, Judge Scheindlin made waves again with her ruling in Pension Committee (she even captioned her 83-page ruling, "Zubulake Revisited: Six Years Later.") In this complex contract dispute, Judge Scheindlin sanctioned 13 plaintiffs for negligence or gross negligence in their identification, preservation, and collection of ESI. The controversial ruling built on many of the standards set forth in Zubulake, establishing:
- The failure to issue a written litigation hold when litigation is reasonably anticipated is gross negligence.
- If a party can show that spoliation was the result of bad faith or gross negligence, it can be presumed that the destroyed ESI was unfavorable, which shifts the burden to the spoliating party to disprove that presumption.
- Spoliation sanctions may include further discovery, cost shifting, fines, special jury instructions, preclusion, and the entry of default judgment or dismissal (terminating sanctions).
CASE THREE
Da Silva Moore v. Publicis Group (S.D.N.Y. 2012)
The introduction of predictive coding makes traditional review look very slow.
Another case involving e-discovery technology, U.S. District Judge Andrew Peck's decision in Da Silva Moore was the first to formally approve the use of technology-assisted review (commonly referred to as predictive coding) software that takes information entered by people and applies it to a larger group of documents, making the review process much quicker and more accurate. Since the Da Siva Moore ruling, predictive coding has been used in a number of cases and is widely viewed as a highly effective means for reducing the cost of review. The technology is also increasingly being applied during earlier e-discovery stages, which we will discuss later in the guide.
EXPERT PERSPECTIVE
E-Discovery is a Two Way Funnel
The e-discovery process is like a funnel. At the top, the preserved data set's size is larger than the collected set, which is bigger than the reviewed set and so on. One big difference, though: in a typical eDiscovery matter/investigation, one often goes back up before sliding downward.
Robert D. Brownstone
Technology & eDiscovery Counsel,
Fenwick & West LLP
Blog - http://www.itlawtoday.com/
Twitter - https://twitter.com/ediscoveryguru
So that was a lot of information The single most important thing to take away from this section is that while every case is different, your e-discovery responsibilities are more consistent. The best way to achieve positive case outcomes and protect your company against sanctions is to have a defined process in place for how you conduct your e-discovery activities.