E-Discovery- Pitfalls of US Litigation

E-discovery- Document Protocols

One of the most onerous facets of US litigation is E-discovery.  Many non US companies are unaware of the requirements of E-discovery which places a non US company at a distinct disadvantage if it is involved in US litigation.  Though some non US companies are forced to learn about E-Discovery because of numerous lawsuits in the US, many companies outside of the US still do not understand the basic concepts.  However, as more and more international companies are finding out, the cost of doing business in the US happens to be the cost of litigation.  More and more foreign companies doing business in the US are embroiled in lawsuits.  And more and more companies are having to deal with E-discovery.  The problem is that failure to follow E-discovery rules when involved in US litigation can not only lead to sanctions and fines but to the loss of the lawsuit itself.

What is discovery?  It is the process of exchanging information and documents between parties in litigation.  What is E-discovery? It is the process of exchanging electronic documents and information in litigation.  As I point out above, E-discovery in the US is subject to certain requirements, many of them onerous, that if not complied with can lead to burdensome and invasive sanctions by the court.  Therefore, it is extremely important that a detailed E-discovery process be implemented prior to litigation as part of an overall legal risk management process.

I suggest that companies need to follow a number of steps to ensure compliance with E-discovery rules but to have a good handle on the document production process.  What are the basic steps?

Initial Steps

  1. Hold Memorandum- when the company learns it is a named party to a lawsuit, the company must issue a Hold Memorandum to its employees.   The Hold Memorandum specifies the length and scope of document preservation required by the lawsuit. At this point, if the company has an auto-deletion program to delete electronically stored documents- that program must be suspended. All relevant documents including electronic documents must be preserved.
  2. Data Preservation- at this point, the company must begin preserving potentially relevant electronically stored documents.  It is a normal rule of thumb to save and preserve all electronically stored documents that are potentially relevant in the litigation.
  3. Interviews- the company must identify those custodians of the relevant records and interview them to determine the relevancy of the records.
  4. Data Storage Locations- possible locations of all potentially relevant electronically stored information should be identified and efforts must be made to preserve the complete contents of the storage media.
  5. Formulate Retrieval, Search, Review and Production Methods- in order to comply with US E-discovery rules, the company needs to work with an outside E-discovery vendor to ensure the retrieval, search, review and production methods are properly put into place.
  6. Technical Requirements- the litigation may put a strain on the IT department.  The company needs to determine whether E-discovery demands will require additional IT resources.
  7. Formerly Request Data-the company’s law department may have to formerly request access to data, especially of it involves obtaining data outside of the US

Collection

Besides the above steps, additional steps must be put in place to ensure proper collection of documents.

  1.  Confirm Retrieval Requirements- the company must work with its outside vendor to confirm requirements for and methods of gathering the required electronic documents.
  2.  Identify Systems for data retrieval- the company and outside vendor needs to determine which data systems should be searched for relevant electronic data and how those systems will be searched.
  3. Prepare Collection Plans- the company needs to notify the records custodians and respective department heads (if any) that data will be copied form the record custodian’s computers, external hard drives, and other places where electronic data is stored.
  4. Perform Quality Control Checks- throughout the collection process steps must be taken to make certain that the data collected is actually intact and in the proper format.
  5. Backup- for safety reasons backup copies of the data collected must be made.

Staging

  1. Review Environment- the selected review environment will be crucial in the efficient and accurate review of the collected data.  A decision must be made as to the review platform.  E-discovery vendors can help in this process.

Review

  1.  The data must be reviewed to determine whether the data is indeed relevant and subject to discovery or not relevant and not subject to discovery.  Also data must be reviewed to determine if it is privileged and not subject to production.  To decrease actual human review and the associated expenses, automated review systems should be used.  The E-discovery vendor can help determine what process to use.
  2. Reviewers- if there is a large amount of data, reviewers must be uses. They also must be properly trained against unintentional production of data.
  3. Attorney reviewers- attorney reviewers will eventually be needed to review documents.  They must be picked either by the E-discovery vendor or outside law firm.
  4. Privilege Review- the final review of documents must determine which documents are privileged and not subject to release to the other party and which documents are not privileged and must be handed over to the other party.

Production

  1. A decision must be made on the format for production. Which format will be used? This is normally decided by the parties after the initial discovery conference takes place.
  2. Copy Production- the files that will be produced must be copied onto media
  3. QC- the copies to be produced must go through a QC process
  4. Delivery –   the documents to be produced are actually copied onto media in the format agreed upon and are physically delivered to the opposing counsel.

These are the basic steps of E-discovery.  As you can see it is quite complicated.  In order to adequately handle handle E-discovery in US litigation it is important to retain an E-discovery vendor or outside provider that can provide E-discovery solutions and help with the collection of ESI. This however, must be part of a E-discovery process.   Failure to implement an E-discovery process as part of an overall Risk Management plan can spell disaster, especially for those companies involved with US litigation on a regular basis.

2 Comments

  • Excellent, highly salient and revealing article Bryan. I will keep this particular article on my desktop for future reference. Thank you for taking the time to share and care about smart thinking, legally.

    Peter Weedfald August 12, 2014
    • Thank you Peter for your comments. I really appreciate them. I will try and come up with another relevant article soon.

      Bryan Hopkins August 13, 2014

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