No matter where you are in the legal world, at each stage of any e-discovery project there are a handful of things you need to get right to have a successful outcome. Clients of course want to save money, but a successful outcome can sometimes be more valuable than money.
What is a successful outcome? For most litigators, it means that a sound, defensible process contributed to the desired result for the client. Let’s review briefly, in summary form, the handful of things that need to happen in every case—the things you simply need get right on each project.
Identification and Preservation:
- Formulate a plan
- Identify the custodians
- Identify sources/systems containing relevant ESI
- Implement a legal hold
- Adjust retention policies to preserve ESI across necessary systems
It is not enough to just issue a legal hold notice. Organizations must take affirmative steps to preserve ESI in place (as some systems allow) or by physically segregating ESI.
Collection of ESI:
- Plan the collection with the legal team, client and IT representatives
- Prepare a collection specification to identify what ESI is being collected
- Use industry standard tools for collection and write-protecting to protect metadata
- Validate the collection through file hashing
- Document the collection using an acquisition report and chain of custody
Remember, without the proper tools and solid documentation the legal team may later have difficulty getting materials admitted into evidence.
Processing of ESI:
- Perform early data assessment/reporting to understand the ESI
- Develop a processing specification, including
- Culling techniques (keyword search, file type, date filtering)
- De-NIST the ESI
- De-duplicate the ESI
- Consider the format of the deliverable
- Perform quality control and prepare an exception report
And if the project involves multiple rounds of processing, keep in mind that tools should remain consistent across data sets.
Document Review and Analysis:
- Plan the review
- Prepare a review memorandum or protocol
- Train the review team (not just on the platform, but the case itself)
- Monitor reviewer progress
- Conduct quality control checks
- Communicate!
A lot is learned during document review. It is important to capture that information so it may be used strategically and tactically by the legal team during the case.
Production of ESI:
- Plan the Production
- Prepare a production specification (form of production)
- Conduct quality control checks
Remember, it is critical to check for inconsistent document coding, ensure images, files and load files are functional, and if documents have been redacted, that searchable text or OCR has also been redacted.
Conclusion
The success of an e-discovery project is dependent upon the ability of each of the stakeholders throughout the five stages above to contribute to a defensible process. Managing to a budget and meeting deadlines are important, but having a sound process or workflow is going to help to manage not only the risks associated with e-discovery, but also consistent lead to successful outcomes for clients.
At ACEDS, we teach and talk through the different phases of an e-discovery project in our programs. If you’re interested in a detailed e-discovery project checklist, you can download it for free here. Learn more about e-discovery education at ACEDS.org or contact [email protected] to inquire about e-discovery training and certification programs.
